IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0     ^^  1^ 

1.1    l.-^KS 

=  IJ& 


Photographic 

Sciences 
Corporalion 


ai  WUT  MAIN  STRUT 

WIUTIR.N.Y.  USM 

(71*)  •71-4101 


4^        ^     %. 

4^ 


1 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historicai  Microraproductions  /  inttitut  Canadian  da  microraproductions  hiatoriquas 


1 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


Coloured  covers/ 
Couverture  de  couleur 


I      I    Covers  damaged/ 


Couverture  endommagte 

Covers  restored  and/or  laminated/ 
Couverture  restaurte  et/ou  pelliculAe 

f      er  title  missing/ 

.e  .itre  de  couverture  manque 

Coloured  maps/ 

Cartes  gAographiques  en  couleur 

Coloured  inic  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I   Coloured  plates  and/or  illustrations/ 


D 
0 


D 


D 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
RelM  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serrAe  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  IntArieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  oertaines  pages  blanches  ajouties 
lors  d'une  restauration  apparaissant  dans  le  texte, 
main,  lorsque  oeia  Atait  possible,  ces  pages  n'ont 
par.  4t4  filmAas. 

Additional  comments:/ 
Commentaires  supplimentaires: 


The  c 
to  th( 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methods  normale  de  filmage 
sont  indiqute  ci-dessous. 


D 

D 
D 
D 
D 


Coloured  pages/ 
Pages  de  couleur 

Pages  damaged/ 
Pages  endommagies 

Pages  restored  and/or  laminated/ 
Pages  restaurtes  ef'ou  peilicul^es 

Pages  discoloured,  stained  or  foxed/ 
Pages  dAcoiortes,  tachettes  ou  piquAes 

Pages  detached/ 
Pages  ditachtes 


Thei 
possi 
of  th( 
filmir 


Origli 
begir 
the  li 
sion. 
other 
first  I 
sion, 
or  illi 


r~pr  Showthrough/ 


Transparence 

Quality  of  print  varies/ 
QualitA  InAgaie  de  I'lmpression 

includes  supplementary  material/ 
Comprend  du  materiel  suppitfmentaire 

Only  edition  available/ 
Seule  Adition  disponible 


Thai 
shall 
TINU 
whic 

Map< 
diffei 
entir( 
begir 
right 
requi 
meth 


D 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obsourcies  par  un  feuillet  d'errata.  une  pelure, 
etc.,  ont  4ti  filmtes  A  nouveau  de  fa^on  A 
obtenir  la  meilleure  image  possible. 


This  item  Is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmA  au  taux  de  rAduotion  indiquA  oi-desaous. 


10X 


14X 


18X 


22X 


26X 


lOX 


7 


12X 


16X 


20X 


WK 


28X 


32X 


1 


The  copy  filmed  here  hes  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exemplaire  filmA  fut  reproduit  grAce  A  la 
gtndrositi  de: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Las  images  suivantes  ont  6x6  reprodultes  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  at 
de  la  netteti  de  l'exemplaire  f HmA,  at  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  ImprlmAe  sont  filmis  en  commenpant 
par  le  premier  plat  et  en  termlnant  solt  par  la 
dernlire  page  qui  comporte  une  emprelnte 
d'Impression  ou  d'illustration,  solt  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmte  en  commenpant  par  la 
premiere  page  qui  comporte  une  emprelnte 
d'Impression  ou  d'illustration  et  en  termlnant  par 
la  dernlAre  page  qui  comporte  une  telle 
emprelnte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^-  (meaning  "CON- 
TINUED,, or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suiv'..its  apparattra  sur  la 
dernlAre  Image  de  cheque  microfiche,  selon  le 
cas:  la  symbols  — »•  signifle  "A  SUIVRE  ".  le 
symbole  ▼  signlfie  "FIN  ". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  fcilowing  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
fllmAs  A  des  taux  de  reduction  diff^rents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  11  est  fllmi  A  partir 
de  Tangle  supArieur  gauche,  de  gauche  ii  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
lllustrent  la  mAthode. 


1 

2 

3 

1 

2 

3 

4 

6 

6 

CI 


( 


Tllli 


FRO^ 


AMERICAN 


CRIMINAL  REPORTS. 


A  SERIES  DESIGNED  TO  CONTAIN  THE  LATEST 
AND  MOST  IMPORTANT 


3Y 


CRIMINAL   CASES 

DETERMINED  IN 

THE  FKDEIIAL  AND  STATE  COURTS  IN  THE  UNITED  STATES, 


AS  WELL  AS 


SELECTED    CASES, 

Impoktant  to  Amkkican  Lawyers, 
FROM  THE  ENGLISH,  IRISH,  SCOTCH  AND  CANADIAN    LAW  REPORTS 


51* 


ili' 


NOTES    AND    REFERENCES. 


\\ 


By   JOHN    0.    HAWLEY, 

I.ATK    I'l.OSKClTINi;    AlKlKNKV    A  I'    UEIKOIT. 


Vol.    II. 


CHICAGO: 

CALLAGHAN  &  COMPANY,  LAW  BOOK  PUBLISHERS. 

1880. 


i 


<"   •!» 


Dc^iV  1953 


lOI'lc^l^^ 


Entered  according  to  Act  of  Con,'.vss.  in  the  y.ar  .iRht-en  hundred  and  eighty,  by 

CAI.I.A(iIIAN    &    (OMl'ANY, 

In  the  i.fflce  of  the  Librarian  of  Congress,  at  Washington,  U.  0. 


Stereotyped  and  Printed  at  the 
DiTROiT  Free  Prbbb  Piuntinq  IIoi'si. 


TABLE    OF    OASES 


REPORTED  IN  THIS   VOLUME. 


PAOB. 

Adams  v.  State 393 

Ah  Lins,  People  r 483 

Albrecht  v.  State 401 

Allen  V.  State . .  441 

AndeisoH,  State  v ....  100 

Anderson  i\  State 198 

Archer  v.  State 404 

Ardaga,  People  v. 690 

B. 

Baker  v.  State 837 

Baker  v.  State 600 

Ballinjiall,  State  d 876 

Barton  v.  Slate 840 

Beall,  State  r 468 

Bloedow,  State  r 631 

Bohan,  State  v 278 

BoiikcT  V.  People 79 

Bowers  v.  State 603 

Brown,  State  v 428 

Brown  v.  People 686 

Buciuiian  v.  State 187 

Bybue,  State  o 449 

0. 

Carroll  v.  Commonwealtli 200 

Carroll  v.  State 4i4 

Carson,  State  v 08 

Chldester  v.  State 163 

Clay  V,  People 881 

Collins  V.  Commocwealtb 283 

Conley  v.  Peoplo 445 

Coyle,  State  t» 140 

Cox  V.  People 839 

Croftou  «.  State 878 

Crowley,  State  V 88 


PAOK 

Daniel  v.  State 421 

Davis  V.  CoramonwealtL  163 

Dickinson,  State  v 1 

Dockstader,  State  v 469 

Doepke,  State  r 638 

Driver,  State  e 487 

E. 

Elliott,  State  r 829 

Erwiu  «.  State 251 

F. 

Ford  V.  State 161 

Foster,  Commonwealth  e 499 

G. 

Qarst,  Ex  parte 018 

Gosha  0.  State 589 

Qrady,  Commonwealth  ff 109 

Gregory  v.  State 146 

Griffith.  State  «. 684 

Habersham  «.  Stato 48 

Hurdle,  State  t ...    .  826 

Harris  v.  People 416 

Hawes,  Commonwealth  t 201 

Ilawes,  Stato  v 694 

Hawkins  v.  People 178 

Hays,  Slate  v 680 

Holbrook,  Kcgina  «. 648 

HoUoy  V.  State 250 

Hood  V.  State 1«5 

Ilorncman,  Stato  « 427 

Uoskios  «.  People 484 


■In! 


ffl! 


iU 


iU    ■: 

■uv 


fif 


m 


IV 


AMERICAN  CRIMINAL  REPORTS. 


Honsh  r.  People 

Howard  )'.  St;ite 

Ilusltiuui  People  v 

Hutchinsou  ».  Commonwealth 
Hynes,  State  v 


PAGE. 

.  465 

.  446 

.  Ill 

.  362 

,.  392 


N. 


Ncff.  State  v. . . 
Norris  v.  State . 


FAOK. 
.    176 

, .     85 


P. 


Jacobs,  People  v ^^^ 

Jilz,  Ex  parte "'*'' 


Joaquin.  State  v. 


Johnson  «'. 
Johnson  v. 


People 
State . . 


650 
396 
430 


Paul,  Territory  v 

Pearsall,  State  p 

Pistorius  V.  Commonwealth 284 


332 
3^0 


K. 


K. 


.626 

263 

06 


Kaufman,  State  v 

Kee  V.  State 

Kellogg  f.  State 

Kent,  State  v 10'^ 

Keesler,  State  v 831 

Kilcrease,  State  c 652 

Kistler  v.  State 18 

Knott  V.  People 184 

Kolbe  V.  People 177 

Kribs  V.  People 109 

Kribs  V.  People 114 

Kring,  Sta^e  v 813 

L. 

Lapage,  State* 506 

Lee,  State  v 61 

Leieham,  State  e 117 

Jjpwla  V.  People 75 

LoomiB  «.  People 846 

Lowe  I".  State 844 

Lymus,  Slate  c 838 

McDonald  e.  State 403 

McN air  ».  State 58:1 

McPherson  v.  Commonwealth — 636 

Mahoiiey,  Stale  v -lOH 

Mercdetli  r.  People 148 

Moon,  Slate  r 64 

Moore,  Keglna  v 1108 

Morgenslern  !\  Commonwealth..  476 
Morrlsotte,  People  » 475 


Ramsay,  State  v 

Ratekin  v.  State 

Rembert  i\  State 

Reneaii  v.  State 

Reynolds  v.  People 

Richardson,  Commonwealth  v.. 

Rickurt )'.  People 

Robinson,  States. 


133 

32 

141 

.('.24 

.    180 

,.612 

.  385 

.654 


Rosenblatt,  Ex  parte 21.5 

Runyan  v.  State ■ 


318 


442 

410 

242 

56 

I'W 

51 

372 

485 
328 
470 


Sacramento,  U.  8.  d 

Schwartz,  v.  Commonwealth . , 

Semler,  Petition  of 

Shannon  v.  State 

Sharley  v.  State 

Sly,  State  v 

Smith  15.  Slate 

Smith  «.  State 

Snyder,  In  re 

Sparrenberger  v.  State 

Stanley  r.  State 340 

Starr,  State  c 3iM) 

Stewart,  State  c. 603 

T. 

Taylor  «.  State 18 

Thompson,  ritate  • 486 

w. 

Walls,  Statee 28 

Ward,  State  v 27 

Whitcomb,  Territory  v 150 

Wliite»\  State 454 

Wiles,  Slate  t)..., 621 

Williams  r.  Commonwealth 87 

Wilson  r.  State 182 

Wilson  .'.  State 3.56 

AVinihrop,  Slate  v 'i74 

1  SVilkinson  v.  State. 196 


CITED  AND  REFERRED  TO. 


-  J    t    1    -      ' 
-I.I    t    i 

II  !  '■       t 


TABLE  OF  CRIMINAL  CASES 


01 


Abbey,  State  ▼ 

Abrahams,  State  v — 

Acree  v.  Com 

Adams,  People  v 

Adams  v.  People 

Addis,  Hex  v 

Alderman  v.  People... 

Allen,  People  v 

Allen,  Rex  v 

Allen  V.  State 

Allen  V.  State 

AIliHon  V,  People 

Almon,  Hex  v 

Ames'  Case 

Anderson  v.  State 

Anderson  v.  State 

Anderson  v.  State 

Andri'W8,Coni.  v 

Andrews  v.  People  ... 

Asliliiirn  V.  State 

Atkins  V.  State 

Ayer,  Com.  v 

B 

BoKKerK  V.  State  

Halley,   Ue^.  v. 

Ilakeniari,  Com.  v 

Huker,  Kex  v 

Uall,  People  V 

Balis.  IteK.  V 

Baiit^H,  (Join.  V 

Barlow,  Com    v 

Banian  I,  Hex  v 

Baruelt  V.  People  

Barrett,  Hej?.  v 

Barllelt,  Slate  v 

Bai'tiett,  State  v 


PAOB. 

29Vt.,  60 18 

6  Iowa,  117 a77 

13  Bush,  353 410 

3  Denio,  190 88 

IComst.,  173...    88 

6  C.  and  P.,  .388,  30.'i 

4  Mich.,  414 SH 

SDenIo,  7« 115 

1  Moody  Cr.  151,  64 

10  Ohio  St.,  887..  8!) 

.Mind.,  161 628 

46  III.,  37 «07 

5  Burr,  atiSe....  6-14 
SMe.,.3t>.5 151 

14  060.,  Jilt! r« 

37Ind.,  653 4t)il 

48  Ala.,  665 465 

8  Mass.,  409 859 

60Ill.,3M 81 

15  0eo.,  tM6 132 

16  Ark.,  668.. 386,  438 
8Cu8h.,  150 161 

43  Tex.,  847 858 

«Cox  Cr.,811..  581 

11)5  Mass.,  6;l 439 

a  M.  and  R,  5:1,      7 

MCal.,  101 813 

7  C.  and  P.,  189,  682 
«  Mass.,  387  .. .      9 

97  .Mass..  597 408 

1  C.  and  P.,  88..  3((7 

51  III.,  385 13(1 

iaCoxCr,.l«8...  6Ht) 

30  Me.,  1.38 .37 

a  Vt.,  660 850 


Battlste,  U.  S.  v 

Baxter  v.  People , 

Beale  v.  Com 

Beall  V.  State 

Beckwith  v.  People.. 

Bell  V.  State 

Bell  V.  State 

Beimett,  State  v 

Ben.son,  People  v 

Bentley,  State  v 

Berfien  v.  People 

Bi(l<lle,  State  v 

Black  V.  State 

Blair,  In  re 

BlandluK,  Coin,  v 

Bleiisiiale,  Re;;,  v 

Bloom,  Slate  v 

Bios,  Com.  V 

Blytlio  V.  State 

Bodin,  People  v 

Boomer,  Com.  ^ 

Bond  V.  State 

Bonner,  Re.K  v 

Bonny,  State  v 

Bf)oth,  Ex  parte 

Brady,  Slate  v 

BraKg  V.  Com 

Brandon  v  People... 
Braiinan,  People  v.. 

Braiin,  State  v 

Breese  v.  State 

Breniian  v.  People. .. 
Brieelaiid  v.  Com 


BriKKs.  State  v 

Hi-lsas  &  Scott,  Rex  v 

llriiiuii.  Slate  v 

Brown,  Com.  v 

Brown,  People  v 


PAOB. 

.    2  Sumner,  840..    r>i 
.   8  III.,  3()8 a«;i 

.     1  Casey,  li 49.') 

.  15Ind.,  378 .3.^3 

.  86  111.,  .-.00 481 

.    4  Gill,  :101 837 

.  44  Ala.,  393 688 

.  14  Iowa,  479 350 

.     6Cal,  331 591 

.  44  Conn..  .W....  373 

.  17  III.,   136 384 

.  .54  N.  H.,  379 391 

.   13Te.\.,  378 863 

.     4  \Vi.s..."i33 31.-1 

.     3  Piek..  3IH   ....     .S8 
.     3C.  ami  K.,  7(m,  .">33 

ir  Wis.,  .V.M 34.-. 

.116  Mass.,.Vi .•i!ll 

.     4  Iiid..  .V,'5 I'.r. 

.     I  Dana.  3H3  ....  410 
.  97  .Mass..  .W....     Ill 

.   17  Ark..  390 iWit 

6C.  ami  P.,  :Wii.  .'itfi 

.  39  N.  n,,  306 4m 

.     3  Wis.,  14,-> 3IH 

.  87  Iowa,  1311 375 

.   10  Graft.,  738....  884 

.  43  N.  Y.,  3(15 61 

.  47Cai.,  96 483 

.  .31  Wis.,  601 180 

.   13(11iioSt.,  116..  166 

.   15  III.,  ,513 436 

.  31   P.   F.   Smith, 

463....  8Utl 

.  81  Vt.,  5a'l 143 

4  Kast..  UVl 88 

4MoCor(i,  886..    17 
131  Mass.,  69 801 

47Cal.,  417 688 


^  H 


I ' 


,1) 


i    1 


VI 


AMERICAN  CRIMINAL  REPORTS. 


PAOE, 

Brr)wn,  Pwple  ▼ 48  Cal.,  258 2f>3 

Brown.  StMto  V 1  Hayii.,  100....  353 

Bmwn.  Stale  V 4  Port..  410 471 

Brown,  Slate  V 4  I^.  Ann.,  505..  BfXJ 

Brown  V.  Com 7«Pu.  Sl.,819....  M!) 

Brown  v.  State 53  Ala. ,  *«  IH 

Brown  V.  Slate 18  Ohio  Si.,  509..  42(i 

Brown  V.  State 38Tex..  4S3 373 

Brown  V.  State Ki  Ind.,  lili 443 

Bubser,  Cora,  v 14  Gniy,  Kl mi 

Buchanan,  State  v. . . .    5  Har.  .t  J.,  317,    37 

Bullai-il  V.  State 38  Tex.,  504 t>3« 

Bunne,  Rex  v 7  Ad.  and  E. ,  58,  404 

Burden,  People  » 9  Barl)..  469.   ...  413 

Biirdick.  Com.  V 3  Ban,  ll», 3t> 

Biirgdorl',  State  v 53  Mo.,  B5 588 

Bnrk,Coni.  v 11  Gray,  4;57.  ...  409 

Burke,  Com.  v 105  Ma.ss.,  376 586 

Biirkev.  State 47  Ind..  538......  184 

Burns  v.  State 49  Ala.,  370 13 

Hiirn.s  V.  State 4>'  Ala..  195 163 


Biinmide,  Slate  v.. 


37  Mo.,  343 :«■ 


t 
!M0 
5S8 


Burrow  V.  State l-'Ark.,  tW 

Burt  V.  Stale 33  Ohio  St.,  394.. 

Burtnett,  I'eople  v. . . .    5  Park.  Cr.,  113, 

Butteriok,  {!iimi.  v 100Mas.s.,  1 114 

Butler  V.  Slate 33  Ala.,  43 143 

Button,  lie),',  v 11  Ad.  and  E.,  N. 

S.,  916,...  438 
Bynam  v  State 17  Ohio  St.,  143..  156 


c. 

Cain,  State  v. 

faldw.'ll,  U.  S.  V 

Call.  Com.  V 

Canceme  v.  People .... 

(."ameroii,  State  v 

Campbell,  People  v... 
Campbell  V.  State.   ... 

Cjinipllll,  Re)».  V 

(^anney  v,  Slate 

Carlierry  V.  State 

CarkhiilT,  People  v.... 

Carroll  v.  Slate 

Carroll  v.  state 

Carpenter  v.  People.. 

Carson  V.  State 

Carter  V.  State 

Cashiel,  U.  S.  V 


OasRelH,  People  v 

Caton,  People  V 

CavaiiHL'li,  People  V,. 
Cayford'M  Case 


1  Hawks.  3.58. . . 

SBIalelif.,  131.. 

81  Plek.,  .509 

18N.  Y.,  138 

2IVnn„4n.5 

4  Park  Cr.,  .ISO.. 

OYersr.,  :»•).... 

ICoxCr.,  830.. 

19N.  H.,  135 

11  Ohio  St.,  411.. 
153, 

aiCal.,  (HO 

CNeb.,  1 

3Hiini|)h„315.. 
4  Scam,,  197.... 

50  Ala.,  m 

8  Ind.,  617 

1  KiiKlieH  C.  C, 
553  ... 

5Hill,  1(« 

85  MIeh.,  3.58 

8  Park.  Cr,,  (i80, 
7Me..67 


133 
313 
173 
038 
4 
310 
433 
586 
473 
I'M 
156 

18 
363 
371 
481 
863 

51 

5.5 
815 
153 
237 

17 


PAOB. 

Cenrfoss  v.  State 42  Md.,  403 404 

Chandler,  Cora.  T 2   Thateh.    Cr., 

187...  151 

Chapman,  Com.  v. . . . .  13  Mete.,  73 80 

Chappel,  Com.  v 116  Mass.,  7 391 

Chapin,  .State  V 3S«an,493 68:1 

Charles  V.  State 6En)?.,  389 6»4 

Chnate,Com.  T 105  Mass.,  4.51 618 

Christian  V.  Com 6  Mete,  .530 494 

Church,  Com.  v 1  Barr.,  110 497 

Clackiier  v.  State .33  Ind.,  418 878 

Clark,  People  v 10  Mich. ,  310. ... .    87 

Clark,  State  V 42  Vt.,  639 aW 

Clarkson,  State  y 3  Ala.,  .378 474 

Clemv.  State 42 Ind.,  480 4.18 


Clewes,  Rex  v. 


4  C.  anil  P.,  221,  619 


Clinev.  State 43  Tex.,  491 102 

Clough,  People  v 17  Wend.,  .351 ...    36 

Cobb  V.  People  84  III.,  .511 44« 

ColTnian  V.  Com 10  Bush..  I!)5....  27;< 

Cohen,  People  V 8  Cal.,  43 115 

Coker  V.  State 80  Ark. ,  .5.3 .38l> 

Coleman  V.  People....  55  N.  Y.,  90 548 

Collier  v.  State 20  Ark.,  3(1 iW6 

Collin.s,  Com.  v 1  Mass.,  116 JMO 

Collins,  Ki-(,'.  V 8M.and  R.,  46,  148 

Conner,  Rex  v 8  C.  and  K.,  518,  369 

Cook  V.  People 51  III.,  144 179 

Coolid;;e,  U.  S.  V 2  Gall..  .•16I..1.33,  473 

Cooper,  State  V 8Zab.,.53 4 

Corbin,  People  V 66  N.  V.,  .3li;i 666 

Cornelius  V.  Cora 3    Meti-,      Ky.), 


4HI   . . , 

Corinvell  v.  People 13  Mich..  437 

Costello,  Com.  v 131)  Ma.ss.,  .J.Vi 

Cotton,  Re(f.  V 13('oxCr.  400.. 

Cowan,  State  V 29  Mo.,  ;!:«) 

Ci-ai*,'.  Slate  V 31  liid..  l,s.-) 

Cramlall,  In  re ;il  Wis.,  177 

Creekv.State 31  ind.,   151   

CreiK'hton.  Rex  V R.  and  R.,6a.. 

I'reson,  State  v .3sMci.,.373 

Crissie,  People  v 4  Deiiio.  53.5 

Crocket  V.  Slate 3:iln(l.,4l6 

Cunninpliain,  Com.  v.,  i:i  .■\lass,.  345 

CiiiTy  V,  Slate 4  Neb.,  .51S 

Curtis,  Com.  v II  I'iek., 

Curtis  V.  S!al(> 6  C!oM.,  « 

Culler  V.  Slate 43  Ind.,  316 


586 
601 
619 
54 
169 
81.5 
330 
116 

m 

001 
U83 
436 

i;« 

875 
183 


D. 

Da  Costa,  Ex  parte...     1  Park.  Cr,  129  28* 

Dai|i'.v,  Com.  V 13Cush.,  8) 038 

DallinpT,  Com.  v US  MasB.,4.)9.   ..  800 

Duinoii,  Pi'oplev 13  Woud.,  JKW,..,  4M 


Ellis. 

Ellis, 

EIhIiik 

Ender 

Englei 

Ennis 

Eno, 

EnocI 

Evan 


TABLE  OF  CASES  CITED. 


vu 


PAOS. 

Daniels ▼. Com 76arT,871 496 

Davis,  People  v B6  N.  T.,  103 6 

Davis,  State  y.........  29 Mo.,  391 263 

Davis,  State  V 41  Iowa,  311 823 

DavlsT.  State 48Tex.,  494 858 

Davlsv.Com 13  Bush.,  318.....  611 

Dawell,  People  v 25  Mich. ,  847 171 

Dean,  People  v. ri4  Mich.,  406 637 

Dearborn,  Com.  ▼ 109  Mass.,  368 625 

Defrese  v.  State 3  Heisk.,  63 622 

Dement,  Ex  parte  ... .  63  Ala.,  889 187 

Dempsey,  State T 9Ired.,884. 688 

DiUv.  State 69  Ind.,  15 187 

DUUngbam  r.  State. . .    6  Ohio  St.,  280. .    86 

88,  240 
Dintnnan  y.  State. ....       Wi8.,Feb.,1880,  607 

Do<lpre  V.  State 4  Zab., '',55 415 

Don  Moran  v.  People..  25  Mich.,  356 686 

Dorr.  State  y 83  Me.,  498 107 

Dossett,  Rt«K.  v. 2  C.  and  K. ,  806,  520 

Dourdi«n,  State  V 8Dev.,443 163 

Drew,  Com.  V 19  Pick  ,  179.. .:i6,  210 

Drew  v.  Com 1  Wliart,  279...  496 

Dula,  State  V Plul.    Law  (N. 

C),  211....  491) 

Dumpby,  SUte  y 4  Minn.,  4.)8  .  .    336 

Duncan  V.  Com., 6  Dana  (Ky.), 

2'.»5....    63 

Dunn,  Com.  y 8  P.  F.  Smith,  17,  28fi 

Dunne,  U.'g.v 6Cox  Cr.,  507..  307 

Dyke,  Reg.  v 8C.  and  P.,  261,  805 


E. 

Earl.  State  y 41 

Earp  v.  StAte 50 

Eastman,  Com.  v 1 

Mfferly,  Com.  v 10 

I">lgerton  v.  Com 6 

E<lwar(ls,  Ui'g.  v Vi 

Ellinglon.  Slati'  v 7 

Elliotl'H  Case 

ElllH,  Com.  V 11 

Ellis,  B<'x  V 5 

Ellis.  SInlf  v 3 

Ellis*  T.  V.  State 12 

ElsiiiKlon,  !{(■({.  V 9 

EndiTs  V.  ri'oide 2i) 

EngliMiiaii  V.  State !;.' 

Eiinlsv,  Slate 3 

Eno,  Statu  V 8 

Enouli,  Ki>x  v 6 

UvauB  V.  State 8 


Ind.,  464 

Oa.,  513 

Cusli.,  189.. .36, 

Alli-n,  1.14 

Allen,  511 

Cox  Cr.,  2:i0.. 
Ired.  Law,  61, 
Leach  Cr.,  17B, 

Mass.  ,405 

Ham.  and  C, 
:«'5.... 

Conn.,  \m 

.\la.,  r,-r' 

Cox  Cr.,  88.... 

Mi.'ii.,3;i;i 

iiiii..  m  

Iowa,  AT  

Minn.,  a^'O 

C.  and  P.,  5:)9, 
Ohio  St.,  196, 


181 

57 
581 
533 
601 
8 
303 
\rA 
4'.I6 

41)4 
350 
103 
023 

87 
375 

«H 
033 

8rr 

153 
166 


PAOB. 

Evans  ▼.  State S4  Ohio  St.,  468. .  8B4 

Evers,  State  ▼. 49  Mo.,  642...  88,  240 

P. 

Fahnestocky.  State...  23  Ind.,  831 268 

Fairfield,  State  y 87  Me.,  617 410 

Farler,  Reg.  y 8  C.  and  P.,  106,  805 


Farris  v.  State 8  Ohio  St.,  171.. 

Fay,  State  y 43  Iowa  651 

Fee,  State  v 19  Wis.,  665 

Felter,  State 88  Iowa,  68 

Ferguson  v.  State 49  Ind.,  83 

Ferrely.  Com 1  Duvall,  163.... 

Ferrigan,  Com.  ▼. 8  Wright,  888. . . 


88 
60 
120 
604 
817 
850 
807 
680 
686 
860 
284 
1.38 


Fields,  Com.  y 4  Leigh,  648 

Finch  V.  State 16  Fla 

Finn  v.  Com 6  Rand.,  701 

Fisher,  State y 8  Ired.,  111. 

Fletcher,  Rex  y R.aiidR.,6S..  60S 

Floyd,  Statev 15  Mo.,  3.19 875 

Fo.stpr,  Com.  y. 107Mass.,a31..1O8,  110 

Foster,  Com.  v 114  Mass.,  311 800 

Foster.  Rej;.  v Dears.Cr.,  ISO,  69i 

Foster,  Slate  y 37  Iowa,  401 110 

Foster,  State  v 61  Mo.,  !V18 318 

Fox  v.  Ohio 6  How.  (U.  S.), 

410....     58 

Fox,  Statev 25  N.  .T.  L.,  .568..  268 

Franklin  v.  State 13M(I.,2.!0 61 

Fraziev.  State 23  Ohio  St.,  551..  2.58 

Free  V.  State 13  Iiul.,334 867 

Freeland  v.  People....  10  111.,  380 65 

Freeland.  State  v 16  Ka.s.,  9 428 

French  v.  People 3  Park.  Cr.,  114,  409 

Frengan,  Com.  v 44  Pa.  St.,  tm...  820 

FroLseth,  Slate  V 10  Minn.,  896 va 

G. 

QalinKan  v,  People ...    1  Pai-k.  Cr.,  878,    17 

Oale  V.  People 80  Mich..  1,59 61 

Galloway,  People  v...  17  Weml.,  540...    143 

(ianalfov.  State 11  Oliio  St.,  114..    68 

Gardner,  I'lMiple  v 8  .Johns.,  477....  353 

(lanlnerv.   I'eople  ...  80  III.,  430 63 

Garner,  Hex  V 3  1'.  and  F.,  (!Hi,  ul9 

Gorretl,  Hex  V 38  K  n  k'.  I-.  and 

K.  ri07....    88 

(lil)l(oiis.  H.  y 18  Cox  I'r..  837      609 

(lilisoii  V.  Slate 30  Imi..  .'1H9 163 

Gillespie,  Com.  V 7  SerK.  and  R., 

109  ...37,    88 

(lilniore,  People  y 4  Cul.,  376 441 

Giugo  V.  State 3gQu.,470 888 


1 


vm 


AMERICAN  CRIMINAL  REPORTS. 


iii 


PAOB. 

OJntult,  U.  8.  T nHow.,!B KM 

Girts  V.  Com...  28 Pa.  St.,  351...  505 

Goodhall,  Reg.  ▼ R.  and  R.,  461, 

36,    88 

Goodenow,  State  ▼  ...  6.5  Me., 30 611 

Gordon,  People  ▼ 40  Mich W 

Gray,  Reg.  V 4  F.  and  F.,  1104,  520 

Gregg,  In  re ..  15  Wis.,  479 846 

Gregor,  Stater 21  La.  Ann.,  473,  .326 

Green,  State  v 7  Wis.,  «r6.. .  .36,    88 

810 

Greenougb,  In  re 81  Vt.,  279 107 

Griffin's  Case.... 1  R.  and  R.,  151,    71 

Griffln.  People  v 2  Barb.,  427 88 

Griffin  V.  State 86aa.,  493 88 

Griner,  Inre IttWis.,  »« 846 

Griswold  T.  State 24  Wis.,  444 181 

Gumraer,  State  v 28  Wis.,  441 180 

Guenther  v.  People...  81  N.Y.,  100. .438,  SOS 

Gutcb,  Rex  v. .Hoc.  &  Maclc., 

433....  645 


H. 

Hackett,  Com.  ▼ 

Hackney  v.  State 

Hall  V.  State 

Harailtun,  People  v. . . 
Hamilton  v.  People. . . 

Hamilton  v.  State 

I'amlltonv.  People... 
Hammond  v.  People.. 

Hanser,  State  v 

Harding,  U.  S.  v 

Harrington,  People  t. 

Harriii,  Com.  v 

Harrison,  Com.  v 

Harrison,  People  v.... 

Hastings.  Rex  v 

Hauglioy,  Com.  v 


8  Allen,  136 

8Ind.,  494 

40  Ala.,  698 

46Cal.,  540 

29  Mich.,  173 

U  Ohio,  436 

89  Mich.,  183 

32  III.,  448 

88  Wis.,  678 

IWall.,  jr.,  C. 
C,  147,.... 

42Cal.,  165 

28 Pa.  St.,  253... 
11  Gray,  808  .... 

8  Barb.,  560. ... . 

7  C.  and  P.,  153, 

3  Mete.    (Ky.), 


Hawkins,  Com.  ▼ 11  Bnsh.,  60!J 

Hayden,  Slate  V 45  Iowa,  17 

Haynes,  People  v 14  Wend.,  546,  88, 

Hays,Peoplev  25N.  Y.,890 

Hazpn  r.  Com 11  Hnrris,.S«,')..37, 

Hazy,  Rex  V 2  C.  and  1'.,  468, 

Healey,  State  v 4s  Mo.,  531 

Heller  v.  State 8;J01iio  St.,  .WJ.. 

Helms' Case l3Sm.  and  M., 

500... 

Henry,  State  v 5  Jones,  65.  ..23, 

Hensly  v.  State 68  Ala,  10 

Herrick,  People  v 18  Wend.,  87. .87, 


169 
619 
693 
50 
350 
6.33 
287 
SM6 

4.S8 
314 
43 
489 
144 
307 

106 

M 

601 

101 

839 

15 

871 

64 

110 

447 

456 
271 
400 
808 


PAGE. 

Hewett,  State  T. 81  Me.,  396 38 

Hicks  V.  State 61  Ind.,  107 380 

Hildebrand  v.  People. .  66  N.  Y.,  .154 :i45 

Sft^ 
323 
448 
147 
4 
144 
8t» 


Hill,  State  V 80  Wis.,  416 

Hill  V.  Com aOratt.,  694... 

Hdiv.  People i8Mioh., :«!.... 

Hill  V.  State 1  Yerg.,  78 

Hind,  Reg.  v 8Cox  Or.  .300. 

Hinds,  Com.  v. 101  Mass.,  81 1 ... . 

Hinkle,  State  v 8  Iowa,  :«!• 

Hodge,  State  v 60  N.  H.,610..37.5,  S-M 

Hoggins,  Rex  v R.  and  K.,  145.  10'< 

Holcomb  V.  People ...  79  III.,  400 179 

Holt  V.  People 13  Mich  ,  881. . . .    -^m 

HoItv.State 88Geo.,  187 ,M 

Hood,  U.S.  V 8Cranch,  i:«...    .Vi 

Home,  State  v 9  Kas.,  110 -.Tit 

Horner,  Rex  v 1  Leach  Cr. ,  :JO."i,  :i  I T 

Horton,  Com.  v 8  Cray,  ;»! .l-i'i 

HortonR.v 11  Cox  Cr..  «70. . .  «(I8 

Houston,  U.  8.  ▼ 4  Cranch,  . .V> 

Hovey,  People  v 5  Barb.,  117 017 

Howard,  State  V 38Vt.,  ."WO 4 

Howev.State 9  Mo.,  tiHO. .  .220,  237 

Hucks,  Rex  v 1  Stark.,  .V,'l :m 

Huey,  State  V Ill  Ind.,  :m 169 

HiifT,  State  V 11  Nev,  17 60 

Hughes,  Reg.  v 1  C.  and  K.,  .MO,  418 

Hughes  v.  State 4  lown,  S.M 62i> 

Hidbert,  People  v 4  Denio,  i:«    ...   1T» 

Hull,  State  v 31  Conn.,  Vii ITT 

Humphrey,  People  v..    7  Jolins.,  314....     ir 

Hunt,  Com.  V 4Metc.,  ill 3<l 

Hunter  v.  Com 29  P.  F.  Smith, 

50;)....  .361 

Hurd  V.  People 85  Mich.,  405 S2 

Hurtv.State 85  Miss., 878 438 

I. 

Israel  V.  State 8  Ind.,  467 I'.i5 


Jackson,  Com.  v 11  Hush.,  679 

Jackson,  In  re 16  Mlidi.,  42.3 

Jackson,  People  v. . . . .    3  Will. ,  !W 

Jack.son,  State  V 17  Miss.,  ,M4  

Jack.son  V.  Coin 8;)(Jfatt.,  Itl'.i.... 

Jackson  V.  Stote 14  Ind.,  327 

Jacqiiins  v.  Com 9  Ciish.,  870. 

Jane  v.  Com 8Metc.  (Ky. ),.)(), 

200.  48;) 

Jenkins' Case 1  R.  and  H.,  492,    71 

Jennings  V.  state 16  Ind.,  m> 1(19 

Jennings,  Com,  v 181  Mass.,  47 615 

Johnson,  Com.  T 8Cush.,6;M 87 


17 
214 
447 
826 
20.1 
:)81 
4»1 


TABLE  OP  CA8E8  CITED. 


iz 


PAOB. 

Johnson,  People  t 46  Cal.,  78 303 

Johnson,  Rex  v 6  East.,  583 89 

Johnson,  Rex  v 3  M.  and  S.,  539.  115 

Johnson,  >  tate  v 3;j  N.  H.,  441 528 

Jolinson,  State  v 8  OreK..  115 .300 

Johnson  v.  IVople....  88  111.,  314. ...  37,  481 

Johnson  v.  State 17Ala.,<il8 519 

Jones's  1'ii.se 1  R.  and  R.,  158,    71 

Jones,  Com .  V 3  Seiv.  and  R. , 

158... 

Jones,  Rejf.  V 1  Den.  Cr.,  5.">1. 

Jones,  Keg.  v 1  E  n i;; .  L.  a  n  d 

E..rm.... 

Jones,  State  V 13  Iowa,  8(19 

Jones,  State  V 1  Bay,  3()5 

Jones,  State  v 50  N.  H.,  ;W9 

Jones  V.  State 55  Geo.,  685 


887 

8!) 


36 
143 
551 

55 


Jones  V.  State GO  Ala.,  161 143 


Jones  y.  State 13  Tex.,  168. 

Jordan  v.  State gSOeo.,  658. 

JoBsly n  T.  Com., 6  Mete.,  836 

Juneau,  State  v 88  Wig.,  661. 


436 
438 
601 


K. 

KahrlL-k,  State  ▼ 39 

Kane  v.  People 8 

Keller,  State  v 12 

Kelly  V.  Com 1 

Kelly  V.  State 3 

Kennedy  Com.  r 119 

Kenworthy,  Rex  ▼....    1 

Kenyon,  People  v 8 

Kimball,  State  ▼ 60 

Kingv.State 6 

Kinlcv.  Com 9 

Kirby,  State  t 9 

Kirlcwood's  Case 1 

KiUiv.  Com 11 

Knapp,  State  v 45 

Knowlton,  Com.  V 8 

Kninuner,  People  y. . .    4 

L. 


Iowa,  277 470 

Wend.,  211. ...  497 

Mo.,  .322 485 

Orant,  481....  286 
Sm.  and  M., 

678...    495 

Mass.,  211 400 

Barn,  and  C, 

711....  497 
Park  Or.,  264,    75 

Me.,  409 151 

How.,  780 466 

Leigh,  627 606 

Yer(? 12 

LewinCr.,103,  618 

Mete.,  581 601 

N.  H.,148 62B 

Mass.,  534 38 

Park.  Cr..  217,  161 


Lahore,  State  v 88  Vt.,  766 184 

Lnlioy,  Coin.  V 14  Gray ,  91 585 

Lambert,  People  ▼....    5  Mich..  ;M9..17,    75 

Lambert  v.  Peo|)le ....    9  Conn. ,  ."irs .30 

Lnmberton  v.  State. . .  11  Oliio,  888 S8 

Lane,  State  v (M  Mo.,  319 MLH 

Lane,  Com.  v 113  Mass.,  4.-)8 OH 

Lange,  Ex  parte 18  Wall,  1(K3 49.1 

Longtry  ▼.  State 80Ala„630 17 


La.sh,  Stater. 

Latham  v.  The  Queen, 

Lathi'opu  V.  State 

Lathrope  v.  State 

I^awi-ence,  U.  8  v 

Lawrence  v.  State .... 

Law's  Case 

Leach,  Com.  v 

Leach,  State  v 

Lea;Ci  v.  State 

Leake  v.  State 

L<j  Blau'.-h.State  v.... 

Lee.;li,  Reg.  v 

,<  ilK'i  V.  Cora 

Lapsing,  .State  y 

Lev.  V.  Slate 

Lewis'  Case 


Lewis  V,  State 

Lewis,  State  v 

Libbey,  Com.  y 

Lieb  V.  Com 

Linkham,  State  v 

Littlejohn,  Coin.  v. . . 

Logan  V.  State 

Long,  Ex  iHirte 

Long,  State  v 

Longbottom,  State  v. 

Lord,  Com.  v 

Lorton  v.  State 

Lowrence  v.  State. . . 


PAGE. 

I  Harrison,  380,  173 
9  Cox  Cr.,  616...  504 

60Ind.,  555 .391 

51Ind.,  192 409 

ISBlatchf.,  ^:96..  814 

4Yerg,  '4.1 357 

6GreenI.,  *»...  473 

1  Mass.,  61 :J0 

7Cii  n.,  758....  468 

M  Md.,  2.->9 B'J9 

10  Humph.,  4,'!)  lU 

2  Vroom,  88.   . .  W 
Dears.,  fi48, ...  H.S 

9  Bush.,  11 2X.' 

16  Minn.,  75 4:;s 

6  Ind.,  881 :<:', 

9  S  m .  a  n  il  M . , 

118  ...  -l.v.. 

30  Ala.,  54  -VS.! 

87  Hawks.,  98....  tWi 

11  Mete,  64..  108,  I-.M 
9  Watts,  300  .. .  :'m 

69  N.  C,  314   ....  l-fi 

15  Mass.,  lt« IV 

.50  Miss.,  869  ....  aiH 

II  Mo.,  iW-i •.\>i 

74N.  C,  181 *i| 

11  Humpli.,  3!». . .  :U-.' 

SMflc.  388 :m 

7  Mo.,  .W .'Jipii 

4  Yerg.,  145 «.") 


M. 


McAllister  v.  State... 

McCarty,  Com.  v 

McClosky,  People  v.. . 
McConologue's  Case 

McCord  V.  People 

McCoi-d,  State  v 

McCormick,  Petit'n  of, 
McCutcheon  v.  People, 

Me  Daniel  v.  State 

McDaniel  v.  State 


McDonald,  Com.  v. . . 
McDonald  v.  People. . 
Mi'darry  y.  People. . 
Mcdehan,  Ex  parte. 
McKlsson,  Com.  y... 


McKuno  y.  State. 
McPike,  Com.  y.. 

Madge,  Reg.  y 

Mageo,  State  y... 


17  Ala.,  439 

8  Pa.  L.,  1.35  . . . 

5  Park  Cr 

107  Mass.,  1.14.  ... 

40  N.  Y.,  470 

8Kas.,  2.18 

*»  Wis.,  498 

on  111.,  tKJi 

5:J(ieo.,  8M 

N  S  m .  a  M  d  M., 
401 .... 

110  Mass.,  4(« 

43  N.  Y.,  61 

8  Lans.,  887 

88  Ohio  St.,  887.. 

8Seig.  and  R.. 

(80.... .371, 

11  Ind.,  111.'. 

8  Cash.,  1«1 

9  C.  and  P.,  29, 
11  Ind.,  151 


80!) 
HOT 

887 
*i 
441 
810 
Wi 
57 

383 

588 

.345 

60 

863 

497 
313 
809 
a>3 
840 


i 


il. 


Si 


AMERICAN  CRIMINAL  REPORTS. 


Si 

4 


PAOB. 

Maher  v.  People. 10  Mich.,  818 82 

HUnn  V.  People :«I11..  407.. ..181,  607 

ManBon,  Com.  v 8  Aslim.,  31 337 

March  v.  People 7  Hiirb.,  3'j1 36 

Marimint  V.  Stttle 48  In.  1.,  31 390 

Maitiii.  People  v 1  Pai'k  Ci-.,  liKi . .  *M 

Martiu,  State  v 30  Wis.,  81l> . . .  .8,  413 

Martin  V. suite 18  Mo.,  474 819 

Marvin  V.  Suite I'JIn.l.,  181 I'iB 

Marvin,  St:ite  V 85  N.  H.,  28 585 

Mash,  Com.  v TMetc,  478, 165,  611 

Mason  V.  State 42  Ala.,  638 618 

Mayers,  Reg.  v 18  Cox  Or.,  811 .. .  686 

Mayloy,  Com.  T 57  Pa.  St.,  891...,  606 

Meiid,  King  V SBarn.  &0., 

606....       4 
Mf-Uicott, State T.   ...    »Kaa,  267..868,  280 

484 

Mercer,  State  t 82  Iowa,  405 

Mercer,  Reg.  v 8  Jur.,  843 

Mercien  v.  People  ex 

rel.,ete 85  Wend.,  64.  ... 

Merriam,  Com.  T 14  Pick.,  518 

Merrick,  State  v 19  Me.,  3H8 

Merriflold,  Com.  v 4  Mete,  168 

Merrill,  Peoi)le  v 4  Keriiaii,  74. . . . 

Miller,  People  v 8  Park  Cr.,  197. . 

MiUer.Statev 7  N.  C,  73 

Miller  V.  HUite 25  Wis..  384.... 4,  181 

Mills  V.  Com.  1  HaiTis,  tai. . . .      9 

Miner,  Stiito  V 17  Kiis.,  808 12 

Minuuck,  liex  v 1  Crawf.  and  D. 

Ci'.,  45      .809 

Mimiiis  V.  Stale 16  OhiaSt.,  881..  a.W 

Mitiliell,  Kx.  parte...    1  La.  Ann., 413..  827 

Mof-T,',  Itex  V 4  C.  and  P.,  364,  6M 

Miiore  V.  lIlinolH 14  How.,  13 68 

Mom^joinery,  People  v,  13  Abb.  Prac,  N. 

B.,  307....  191 

Morey,  suite  V 2  Wis.,  494 64 

Morgan,  Com.  y 107  Mass..  199 60 

Morres,  Rex  v 7C.  ati<i  P. ,  870,  806 

Morrill, Com.  V SCiisli.,  571 43 

Morrlsv.State HSm.andM., 

8tW . , . ; 

MorrlHV.  Slate 81  Iiid..  189 

Morris  V.  State IHlaekf.,  37    .. 

Morris,  U.  8.  V 1  CurliHC.  C.,83, 

MorrlBoy  V.  People....  II  Mieh.,;)87..387,  'M 

Mount  V.  Slate 14  ( )liio,  8115 43(1 

Mullen,  Com.  v 117  Mann.,  M5 60 

Murray  V.  Com 28  P.  F.  Smith, 

817....  886 

Murphy,  Com.  v 8  Qray,  610 410 

Murphy,  State  V 6  Ala.,  846 848 


890 
177 


686 
875 
115 
6(M 
238 
488 


505 

UOl 

<^ 

51 


PAOB. 

Murphy  t.  Com 1  Meto.   (Ky.), 

465  ...  088 
Muitagh,  Com.  v 1  Ashm.,  8?A . . .    17 


N. 


606 

336 
383 
4U» 
583 
lUtt 


Nabors  y.  State 6  Ala.,  200.... 

Newcomb  v.  State  ....  87  Mi.-is..  383. . . 

Newman,  People  y. . . .  6  Hill,  8y(i 

Nichols,  Com.  y 10  Mete,  B-IO. . . 

Nisbitt,  Beg.  y 6  Co.x  Cr.,  380. 

Norton,  Com.  y 11  Allen,  860..! 

NorvUl,  State  y.. .."....  SYerg.,  84 438 

NoyesiStateT 86 VI.,  415 87 

Oates,BexT 89  Eng.  L.  and  E. 

6,')8....     38 

Ober,  Statey. 62N.  H.,459 60 

O'Brien,  Com.  v 119  Mas.s.,  ai8 671 

O'Conner,  In  re 6  Wis.,  388 IMS 

O'Conner  v.  State 9  Flu.,  215 2)B 

Oddy,  Ri'g.  y 4Cox,  Cr 648 

OdeU  v.  State 84  Ind.,  513 86 

Oilkill,  State  y Tired.,  251 47W 

O'Neale  V.  Com 17Qratt.,  582....    17 

Orbell,  Queen y 6Md.,42 87 

Orkins,  State  y 28  Ind.,  864 169 

Osborne  v.  People....    2 Park.  Cr.,  583,  533 

Oscar,  State  y 7  Jones,  805 488 

Oweus,  State  T. 82  Minn,,  238 629 


P. 


Page,  Ex  parte 

Palmer  V.  People 

Parker,  Com.  y 

Parker,  Com.  y 

Parker  V.  State 

Parr,  Com.  y 

Parsi  iiis  v.  State 

Paxlon's  Case 

Pence,  U.  8.  y 

Pennington,  Ex  parte, 


Perkins,  In  re 

Perry,  In  re 

Philliriek,  State  y... 
l'liilll|is  V,  People... 

Pierce,  Stale  y 

Plerci'v.  State 

Pike,  State  y 

Pleasant  V.  State..,. 
Plunkutt,  Stat«  y.  . . 


49  Mo  ,891 820 

4Nel).,  75 486 

9  Mete,  368 4 

Thach.  ^r.,  24,  248 
4(>liioSt.,  503..  409 
6  Wutts  and  8. 

346....  364 

81  Ala.,  300 869 

10  L.  C.  ,Iiir.,  818,  818 
4  Craiieh,  601. . .  65 
18  Mees,  and  N., 

678....  237 
2Cnl.,  434 287 

80  Wis.,  808 1M5 

81  Me.,  401 87 

07Harl).,  353 538 

.    8  Iowa, 831..  148,  161 

18N.  H.,  586 51 

49N.  H.,  399 687 

,  18  Ark.,  860. 688 

64  Me..  584 686 


f 


TABLE  OF  CASES  CITED. 


Zi 


PAOE. 

Poison.  StatB  r 20  Iowa,  133 0J9 

Portor.  ('mil.  V 10Mote.,2B3 5" 

Porter  V.  Slate 15  I  ml,  433 140 

Potior,  State  v 28  Iowa,  SM ;« 

Powell  V.  State 19  Ala.,  ."JT? 3J() 

PrescotI,  State  V 8:J  N.  H.,  812 68!J 

Price,  Com.  v 10  Gray,  473 53.J 


Price  V.  State 19  Ohio,  423 429 

Prius,  ( 'oin.  V 9  Gray,  137 36 

Prowcs,  Hex  ▼ 1  Moo.  Cr.,  »19. .  353 

PuUen  T.  People 1  Doug.  (Mich.), 

48....  337 
Patiuun,  Com.  ▼ l<Pick.,  136.  ...  612 


R. 


66 
24J 

88 


Rankin,  State  r 4  Coldw.,  146, 

Raniioy  v.  People 22  N.  Y..  413. . . 

Rathlmii,  Peoplev....  21  Weml.,  509., 

Ratzky  v.  People 39  N.  Y..  184 . . , 

Bay,  Com.  v 3(iray,  448 Ul 

Reed  V.  State 38  Iiid.,  396 U4 

Reiiihart,  People  v. . . .  30  CVvl.,  419 01 

R«>iii!)y,  Com.  V 'J  ti my,  508...  .  410 

Remst-n  v.  People 4.'i  N.  Y.,  0 28 

Rentou,  Stat.1  v l.-)  N.  II.,  109 Vi 

Rest.Mililatt,  People  v.     1  .Mil).  Pr.,  808. .  I.'t8 

Row,  K.'X  V 1  Kel.,  80 808 

Uew  V.  Missouri 17  Wall.,  5:18 394 

Rey  V.  SI  al  e II'  iwa,  310 4,')7 

R.'yiiiilil'^.  Com   v Ill  Mas.s.,  liiKi 109 

Reyiiolils  V.  U.  8 Sdllii,  11,")  ..JSl.  Oil 

Rlio.l.'s,  Kcf,'.  V 8L(.nlHai,'.,H8(i,  4vn) 

Kli  ..iiwv.Coin 3  Diivali.  l.V.I....  341 

Hifliiirils,  l'.M)plev....     lMich.,817 37 

Hicliinls.iii,  !{<•(,'.  v....    8  F.  ami  !•'.,  .'tl.'),  5',M 


5  HIalcliI'.,  81M. 


51 


87 

88 

.30 

301 


Ril.y,  U.  S.  V   

RiiiilsUop'H  Case ftJ  Wis.,  817 183 

Rill);,  III  re 88  Cnl.,  817 887 

Ripl.v,  SLiti-  V 81  Ml'.,  !t8ll 

Roliblii.s  V.  State 8  Ohio  St.,  114.. 

RiiliiTts,  Sliilt-  V at  Mc,  838 

RoIhiIs  v.  Slate 14(ie(>.,  18. 

R..l,iiis>iii.  I'.M.pln  V...     1  Park  Cr., Oil..  589 

R.ilisuii.  1{,..\  V H.  and  K,  413,  318 

R.ili.v,  Com.  V 18  1'ii'k.,  508. .5.3,   189 

Roilaliai'li,  Stale  v....  19  Iowa,  l.M 1)05 

RodiT,  Ui'X  V 13Co!f  Cr.,O30. ..  510 

Roi'lker   111  re S|.i'ai;iie. ',70..  1'U 

Rollaiid  V.  Com 88  I'li.  St  ,  300 ,J 

Ross,  Slate  V 89  Mo.,  38 '37 

RoNWcll,  Slate  V 0  Conn.,  410  ...    17 

Roudetiliiish,  U.  a  v..     lllilld.,511 81 

RouualU,  State  v 14  La.  Aim  ,  278,  853 


PAGC 

Ro wton,  Reg.  ▼. 8  B.  and  H. ,  3.^3.    68 

Rusball  V.  Com P.  and  W.,  83,  227 

s. 

SallenviUe,  Com  v. ...  .120  Mass.,  SfSi 4ir. 

Salt,  Reg.  V 8  F.  and  F.,  834.  523 

Sam'sCase 18  8.  and  M.,  189,  466 

Sater,  State  V 8  Iowa,  420 2B8 

Saimders,  People  ▼...    4  Park.  Cr,  196,    BB 

Scales,  State  V 6Jones,  115 873 

Sclieiick,  People  ▼....    2  Johns.,  479....  853 

Schmidt  V.  State 14Mo.,i;«' 40» 

Schriedley  v.  State....  23  Ohio  St ,  130..    84 

Scott,  StJite  V 12  La.  Ann.,  274,  889 

Seals,  State  v 16  Ind.,  JWS 17 

Seibertv.  State 40 Ala.,  00 410 

Selfridge,  Com.  v 859 

ShalTnerv.  Com 22  P.  F.  Smith, 

60.... 305,  540 

Shall,  People  v 9  Cow.,  778  ....  144 

Shannon  V.  People....    6  Mich.,  71 78 

Sliedd,Com.  V 7Cush.,5U 86 

Shepard,  State  V 7Conn.,54 033 

Shepherd,  Com.  v 1  Allen,  .575 581 

Slieiiherd,  State  V 7  Conn. ..M.    51,585 

Sheppard's  Case Leach  Cr.,  305,  1.51 

Siiiiiiions  V.  Com BHiiin.,  017 3.53 

Siiiijison,  Com.  V 9  Melc,  13 115 

Simpson,  State  V 3  Hawks..  080  ..    .'18 

.Simpson  V.  Slate 4  Hiimph.,  4."><1..  353 

SliilT,  People  v 2  Park.  Cr.,  110, 

87,  101 

Slaiiwlitcr  V.  Slate 6  Humph.,  412..  434 

Smalli-ry  V.  Slate 40  Iiul.,  417 .375 

Siiiai't  l-'om.  V Oflray,  15 US 

Siiiitli.  Com.  V 1  (iratt.,  55:1....  478 

Siiiltli,  Com.  V 108  Mass.,  Ml 890 

Smith,  People  ex  rel. .  88  N.Y.,Sui).  Ot., 

414....  175 

Smith,  People  V 85  Mich.,  497 IXi 

Smith.  People  y. B.3  N.  Y.,  111. . ..    846 

Smith,  Stale  V 8  Yerf?.,  151...  143 

Smith.  Stale  v  75  N.  C,  806 817 

Siiiltli  V.  Stato ,^3Me.,48 4 

Sniilli  V.  Slate 18  Oliio  St.,  4'iO..  156 

Smith,  Peophiv 9Mloh.,  193.  ...639 

Spaiiu;ler,  In  re 11  Mieh  ,  310  ....  344 

Spejjrerv.  Slate 88  Wis.,  ■ino 006 

Spllsliury,  Rex  v 7  C.  and  P.,  187,  im 

Sipirev.  Slate 40  liid.,  45!l 1)11 

Stai'y,  In  re 10 ,1()lmH.,  ;).38  ...  344 

SialTonl,  State  y 07  Me.,  li'i. 877 

Slanlierry,  lleg.  v....    9  Cox  Cr.,  94.. .    80 

Stanl.N.  Slate  V 4  Jones,  89il....    54 

Slannard,  Rex  T 7  C.  and  P.,  673,    Si 


k 


xu 


AMERICAN  CRIMINAL  REPORTS. 


PAGE. 


Staup  v.Coin 74  Pa.  St.,  488... 

Stearns,  People  T 21  Wend.,  413. . . 

Stearns,  Com  V 2 Mete.,  343.... 


144 

108 
121 
B18 
471 

5itl> 
151 

87 

m 


Stearns,  Com  t 10  Mete.,  266. . 

Stedman,  State  y 7Port.,  495.. 

St^-phens  v.  State 11  Geo.,  238. .  . 

Stephenson,  Com.  v.. .  11  Cush.,  481. 

Stetson,  People  ▼ 4  Barb.,  151 .  38, 

Stevens,  State  V. 80  Iowa,  391 

Stephens,  Reg.  ▼ L.Rep.,lQ. 

B.,  7oa.... 

Stewart  V.  State 84Ind.,  143 

Stewart  v.  State 18  Ark.,  747 

Stewart  V.  State B  Ohio  St. ,  S41 . . 

Stinson  v.  People 43  111.,  397 

Stoehr,  Com.  v 109  Mass.,  365 

Stokes  V.  Poople 53  N.  Y. ,  164 .  .282, 

Stoltz'sCase 4Scam.,  168.... 

Stout,  People  v 4  Park.  Cr.,  71 . . 

Stoner  v.  People 56  N.  Y.,  315 

Strain,  Com.  v 10  Mete.  521 

Strong's  Case Kirby,  ;J45....    29 

Stnbbs,  Reg.  v Dears.  Cr. ,  565.  307 

Sullivan,  State  v 46  Wis.,  595 63il 

Sully  People  v B  Park.  Cr.,  142,    88 

107,  2;w 

Summers,  Rex  V 8Salk.,  194 !)8 

Swink,  State  ▼ 4  D.  and  B.,  368,  138 


Tryon,  People  v 4  Mich, ,  665  .. . 

Tuckerman,  Com.  v.. .  10  Ciray.  173. .. . 

Turbevillev.  State....  42Ind.,  490 

Tumer,  Com.  v 3  Mete.,  19  .... 

Turner,  Rex  V 9CoxCr..  145.. 

Tweedy,  State  V. 11  Iowa,  3!jl.... 

Tyrav.Com 2Metc.  (Ky.),  1,  6a8 

U. 


PACK. 

...  115 
.')S1 
375 
584 
606 
4.S7 


616 
i:« 
4:^1 
447 
115 
535 
386 
505 
519 
83 
87 


Underwood,  State  v. 
Uprichard,  Com.  v.. 


49  Me.,  181 '^^ 

3  Gray,  4;J4. . . .    ■V'^i 


Vadnais,  State  v 21  Minn.,  3S3 ti22 

Vickery  V.  State I« 'IV.k.,  :»' 1"- 

Yoke,  Reg.  V R.  and  R,  Ml,  .".isi 

Von  Earnam's  Case. . .    4  N.  C.  Rep  ,  2S8,  313 

w. 

Wade,  Com.  V 13  I'lek.,  l'.«i S3 

Wade,  U.S.  V 3  Cramli.  HHO. . .  336 

Walker  v.  State 6  lllackf .,  1 607 

Wall.Statev 31  Jle.,  lli.'^i 391 

Wall  V.  State 3:1  In,!..  LM) 169 

Wall  V.  State .'il  Iml  .  I.VI 330 

Wallace,  t'oni.  v 16  (iiuy,  ■^21, . .   .    W 


Wallaoi",  State  v . 


!IN  ll..,')l,"i..l7',',  .V3,-> 


Taintor,  U,  8.  v 11  Blatchf.,  374..  182 

Taylor,  Com.  v 101  MaHs.,  173  ... .    >•» 

Terrel,  State  v 12  Rich.,  339.  .,7,  381 

Thomas,  People  v 9  Mich.,  231 61 

Tliomas,  Reg.  v 9  C.  and  P. ,  741 ,  ;M8 

Thomas  v.  People 84  N.  Y.,  '■m  ....  '£» 

Thompson,  Con\.  v. . . .    6  Allen,  591 015 

Thompson,  State  v.. .  19  lown,  399 l.M   I 

TliompsoM  V.  Com ....    1  >Ictc .  ( Ky . ),  !•'),  .'i:i~ 
Thomps'     V. State....    5  Hunipli.,  i;W. .  4(19 

Thorntoii,  State  v C7Mo.,  3611 .M 

Thrasher,  Com.  ▼ 11  Gray,  450.. 60,  sa,". 

Thuiborii,  Reg.  v 1  Uen.  Cr.,  iWr. .  81)8 

Thurston,  State  ▼ 8  McM,  (S.  C), 

383....  359 

Tllton,  People  V «  Wheeler  Cr., 

3M....     65 
Tompkins,  People  T. . .    1  Park.  Or.,  3»1,  3.'!7 

Toiiey,  Kx  parte llMii,,(l(i3 SS-I 

Townsend,  State  T....    8  Ilarr.   (Del.), 

513....    55 

Trltloe,  llpg.  V 1  C.  and  M.,(l.')0,  377 

TriU,Com.v 4  Pa.  I,.  Rep.,  18,  (107 


Walter,  Slate  v 14  Kas  .  .7.". 

Waller.  Rex  v 3  Ksp  .31 

Warden  v.  Slate 34  t)liio  Si .,  1 13 

Warner,  People  v 5  Weml..  371... 

Watkins,  State  V 9r,iHri.,  17.... 

Watkinsv.  State lllnd.,  113 

Watson  V.  State ■»'>  Miss.,  .I'.i:!    . 

Way  V.  State .■!5  Iml..  Kill 

Weatherby,  State  v. ..  4:|  Me.,  '.'.'ix 

Webster,  Coin,  v  5  Clisb,  3!l.").    . 


419 
644 

I.-,!) 
13(1 

r.iii 

4!l:! 
:!.'-.ii 
3;.'> 
.  (117 
3ll:i 
.MH 

Wi'll,  People  V 40<'al,  3(1.'*  Jdl 

Weinziirptlliiv. State..    7  1iliiekr..  IHil,      :*\n 

Welch  V.  Pciplo 17  III.,  -m DM,   115 

Wells,  Rex  V M.  ami  M..  :13(1.  3(15 

Weill  worth.  Slate  v.. .  (ir)Me.,3:il 60 

Wenlworlh,  Slate  v...  .15 N.  11.,  113.  .410,  BH3 

Westv.Hlale 1  Wis  ,  3(l!t..  .17,    15 

Weymouth,  ('oni.  v. ..    8  Allen,  114 5"') 

Whaley,  Com.  v 6  lliisli,  3(16 Kl'l 

Wlieatlaiid,  Keg.  v....    8('.  and  P.,  SUH,  413 

Wheeler,  State  V 19  Minn.,  98 141 

White,  Com,  v II  Cms  i,  181  . ...   IM 

White,  Peiiple  v 31  Wend,,  580  .. .  470 

White  V.  State 61  Geo.,  886 38 

Whilten  V,  State 86  Ind,,  190 188 


TABLE  OF  CASES  CITED. 


xtt! 


PAOE. 

Wilkps,  Rexr 7  C.  and  P.,  8T1,  :in5 

Williams,  Com.  v 9Gia.v,  4tl1 114 

Williams,  Com.  v 8  Ashni.,  «!i ;«1 

Williams,  People  v....    4  Hill,  9 Sli 

Williams,  Ucx  v 1  C.  and  K.,  \m.  111 

Williams,  State  V in  Huini)li.,  101..  :3r>!t 

Williams  v.  Com B  Casey,  102 ... .  ."JOfi 

Williams  v.  State ]nGt"o.,4n3 2S4 

Williams  v.  State fi  Iliimijli..  .W.".. ,  .VJi 

Williams  v.  State 12  Ohio  St..  cej, .  (i2!t 

Wllscm,  Com.  V 1  <ii-a.y,  ;i»0 .mi 

Wilson,  State  v  8;!  I.a.  Ann.,  KtH,  2H1 

Wilson  V.  State 1  Wis.,  IH-J r, 

WiLson  V.  State 8-1  Conn..  57 B.1 

Wisonv.State 1  Porter,  118...     !I8 

Wilson.  People  V 6(111.,  11)5 O.'iO 

Wiiiiiiper  V.  Stat« 13  Ind..  .MO 5,''. 

Winliworlh,  Itefr.  v....    4  C.  anil  P.,  414,  ."iai 

Winslow,  People  v....  38  Mich 8)8 

Wolferlon  V.  State....  KiOliio,  173 17 

Wood.  People  v 3  Park.  Cr.  (KSI,  m\ 

Wood,   Ken.  V 3CoxCr.,  4.W..  a'lS 

Wood.Slatev 3HWis.,71 aiB 

Woods,  Com.  V Id  (Iraj ,  477 138 


PAOE. 

Workman  v.  State....  4  Sneed.,  42.').. ..  3:)7 

Wri;,'ht  V.   People 1  Hreesi>,  (Mi U7 

WriKlit  V.  Slate 18  Deo.,  mi 2li3 

Wylie,  Hex  V 8I,eaeli  Cr.  117 1,  .VvMI 

Wyman,  Com.  V 8  Mete,  !H7 ll.'i 


Yandt  V.  People 6.1111..  M73.... 

Yaney,  State  V 1  Law  liep.  (N 

C.t,  niit... 

Yates,  Kx  pirte 4  .lolins  ,  318.. 

Yaijer.  Kx  parte 8  Hall,  s,"i 

Yoe  V.  People 49  111.,  410 

York.  Com.  v 9  Mete.,  93 

Youiijt,  Com.  V 9  nra.v,  6 

Youne:.  Rex  v 3Tenn,  98. ..37, 

Yoiin.',  Stale  V 7(1  N.  C,  8.")8... 

Young's  Case l.JOratt.,  604.. 


Zwelgle  T.  State 87  Wis.,  898. 


481 

6.5 
820 
841 
482 
548 
114 
840 
10« 
477 


606 


'ffel 


c 


MM 


V  ' 


•i: 


american 
Criminal  Reports. 


-ill 
4* 


. 


Mil 
m '. 


AMEElOAir 

CEIMINAL  EEP0ET8. 


8tatk  v.  Dickinson. 
(41  Wis..  299.) 

Aboution  :  Prodncinf)  death  of  prer/naiU  woman  by  drugs,  etc,  —  Proof  of 
statements  of  deceased  ichen  visitiiir/  defendant — Dying  declaration  of 
deceas<;d  when  a'loitl  to  visit  difendant  —  Nature  of  tlus  offense  at  common 
law  and  by  statute. 

la  a  criminal  action  for  producing  the  death  of  a  pregnant  woman  by  admin- 
istering drugs  or  using  an  instrument  upon  her  for  tlie  purpose  of 
destroying  tlio  cliild,  wlierc  it  was  sliown  that  the  deceased,  shortly 
before  her  dL'atii,  visited  defendant's  house,  the  court  admitted  evidence 
of  conversalioiis  between  tlio  deceased  and  the  witness,  occuring  about 
tlio  time  of  sueli  visits,  in  relation  to  the  object  for  which  they  were 
made,  but  instructed  tlic  jury  tliat  they  could  consider  such  testimony 
only  as  it  tended  to  sliow  the  purpose  or  intention  witli  which  the 
deceasetl  visitiul  the  defendant,  and  not  as  evidence  that  defendant  acta- 
ally  performed  the  acts  ciiarged. 

Held,  that  there  wiw  no  error;  proof  of  such  visits  being  clearly  admissible, 
and  the  otlier  facts  testified  to  being  contemporaneous  with  the  visits, 
and  so  connected  with  them  as  to  illustrate  their  character,  rnd  being 
tlierel'ore  a  jiart  of  the  res  r/esfte. 

In  prosecutions  for  any  form  of  homicide,  the  dying  declarations  of  the  per- 
son whose  dealli  is  tlie  subject  of  the  cluirge,  in  respect  to  the  circum- 
stances of  the  deatli,  are  admissible  in  evidence,  notwithstanding  the 
clause  in  tiie  l)ill  of  rigiits  wliicii  secures  to  tlie  accused  the  right  to 
"  meet  tlie  witnesses  face  to  face." 

At  the  common  law,  the  unlawful  use  of  instruments  or  drugs  upon  n  preg- 
nant womiiii,  though  with  her  consent,  for  the  purpose  of  producing  an 
abortion,  if  it  resulted  in  her  deatli,  was  murder;  while  the  statute 
reduces  the  crime  to  manslaughter  in  the  second  degree. 

Repoutkd  from  the  circuit  court  for  Green  county. 

The  follo\viii<5  statement  of  the  case  was  originally  prepared 
by  Mr.  Justice  Cole  as  a  part  of  his  opinion: 

"  On  the  trial  of  this  cause,  questions  of  law  arose,  which,  in 
the  opinion  of  the  circuit  judge,  were  so  important  and  doubtful 
Vol.  II.- 1 


%   in 


1^ 


f  AMERICAN  CRIMINAL  REPORTS. 

fu  to  require  the  decision  of  the  Supreme  Court  upon  tliem ;  and, 
the  defendant  desiring  it,  those  questions  have  been  reported  by 
the  judge  for  the  decision  of  this  court. 

"Tliis  was  a  criminal  information  founded  upon  section  11, 
ch.  164  E.  S,,  which  reads  as  follows:  'Every  person  wlio  shall 
administer  to  any  woman  pregnant  with  child,  any  medicine, 
drug  or  substance  whatever,  or  shall  use  or  employ  any  instru- 
ment or  other  means  with  intent  thereby  to  destroy  such  child, 
unless  the  same  shall  have  been  necessary  to  preserve  the  life  of 
said  mother,  or  shall  have  been  advised  by  two  physicians  to  be 
necessary  for  such  purpose,  shall,  in  ease  of  the  death  of  such 
child  or  of  such  mother  be  thei'eby  produced,  be  deemed  guilty 
of  maiislaugliter  in  the  second  degree.'  The  information  in  this 
case  charges,  in  substance,  that  the  defendant  did,  on  the  8tii 
day  of  January,  1876,  at,  etc.,  in  and  upon  one  Jenny  Exerson 
then  and  there  being — the  said  Jenny  Everson  being  j)regnant 
with  child — feloniously  and  willfully  make  an  assault,  and  that 
the  defendant  did  then  and  there  feloniously  and  willfully 
employ  upon  the  body  and  womb  of  said  Jenny  a  certain  sharj) 
instrument,  to  the  informant  unkiu)wn,  with  intent  thereby  then 
ami  there  feloniously  and  willfully  to  destroy  said  child,  the  same 
not  being  ncfcssary,  etc.,  and  not  being  advised,  etc.;  by  means 
wlicreof  the  deatli  of  the  said  Jenny  was  thereby,  to  wit,  on  the 
l(ith  day  of  January,  1876.  at,  etc.,  produced,  whereby  the 
defendant  did,  on  the  said  16th  diiy  of  January,  at,  etc.,  felon- 
iously kill  and  slay  the  said  Jenny  Everson  against  the  peace  and 
dignity  of  the  state. 

"  The  circuit  judge  reports  that,  on  the  trial,  it  appeared  by 
the  uncontradicted  testimony,  that  the  defendant  had  been  in  the 
practice  of  treating  diseases  for  several  years  i)ri<ir  to  the  com- 
mission of  the  offense  for  which  she  was  tried  ;  that  during  this 
time  she  was  a  resident  of  the  village  of  ]\[onroe,  and  was 
familiarly  known  as  Mrs.  Ferguson,  and  was  so  called,  though 
her  real  name  is  Dickinson;  that  deceased,  at  the  time  of  her 
death  and  for  a  year  or  more  next  jirior  thereto,  resided  in  the 
Gleissner  House,  a  public  hotel  in  the  village,  as  a  servant;  that 
the  residence  of  the  defendant  was  about  one-half  mile  south 
therefrom;  that  while  deceased  was  so  living  at  the  Gleissner 
House,  one  Mivry  Erickson  was  also  a  servant  in  the  same  house, 
residing  therein  ;  was  an  intimate  friend  of  deceased,  and  shared 
the  same  room  and  bed,  they  being  of  about  the  same  age;  that 


I 


STATE  V.  DICKINSON. 


3 


Mary  was  witli  decoased  at  the  Gleissner  House  on  the  8th  day 
of  Janiiaiy,  1870,  until  about  three  o'clock  p.  m.,  when  she  went 
away  from  the  house,  leavina;  deceased  in  her  room  therein.  The 
prosecution  sought  to  prove  that  on  the  Stli  day  of  January, 
being  Saturday,  the  deceased,  in  the  afternoon,  went  from  the 
Gleissner  House  to  the  house  of  the  defendant  for  the  purpose 
of  having  an  operation  for  abortion  performed  \ipon  her,  and, 
among  other  witnesses,  called  Mary  Erickson,  Avho  testified  to 
loaning  deceased  $10  that  day,  and  as  to  conversations  had  with 
decea.<ud  when  she  loaned  the  money;  stated  what  the  deceased 
said  she  was  going  to  do  with  it,  and  where  she  was  going  that 
aftei-noou,  and  for  what  purpose.  The  witness  was  also  per- 
mitted to  testify  as  to  conversations  had  with  the  deceased  on  the 
previous  Wednesday  and  Friday,  either  before  or  after  the 
deceased  had  been  out  and  had  returned  to  the  hotel.  In  these 
conversations  the  deceased  stated  that  she  understood  or  had 
found  out  that  she  was  in  a  family  way ;  that  she  had  been  to 
see  the  defendant  about  it ;  had  been  or  was  going  to  defend- 
ant to  get  medicine  and  syringe ;  that  she  had  made  an 
arrangement  or  bargain  with  defendant  to  have  an  operation 
performed  upon  her ;  was  to  give  $25,  and  was  to  return  to 
defendant's  on  Saturday  afternoon  for  the  purpose  of  having 
instruments  used  to  get  rid  of  the  child.  This  is  the  substance 
of  the  testimony  of  this  witness  as  to  the  declarations  or  state- 
ments of  the  deceased.  The  testimony  was  objected  to  on  the 
part  of  the  defendant  as  incomjjetent  and  inadmissible  for  any 
purpose.  The  prosecution,  however,  claimed  that  it  was  com- 
])etent  to  show  that  the  deceased  had  at  that  time  the  intention 
of  having  an  abortion  produced,  and  that  this  evidence  was  intro- 
duced for  that  purpose.  In  his  charge,  the  learned  circuit  judge 
BO  restricted  the  effect  of  the  testimony,  and  directed  the  jury 
that  all  the  declarations  of  the  deceased  made  before  she  was 
informed  she  could  not  live,  in  which  the  defendant's  name  was 
c(»nnccted,  could  only  be  considered  as  evidence  tending  to  show 
that  at  that  time  tlie  deceased  had  formed  the  purpose  to  go  to 
the  defendant  to  have  an  abortion  produced  upon  her,  but  was 
not  evidence  that  the  defendant  actually  ])ro(luced  the  abortion 
or  had  engaged  to  do  it. 

"Tlio  questions  submitted  1)y  tlie  circuit  judge  are  the  fol- 


lowing; 


(( ( 


1.     Did  the  circuit  court  err  in  admitting  the   estimony  of 


ijH 


4  AMERICAN  CRIMINAL  REPORTS. 

the  witness  Mary  Erickson  in  respect  to  tlio  statements  sworn  to 
have  been  niade  to  lier  by  the  deceased,  Jenny  Everson,  as  set 
forth  in  the  re|)ort,  as  tlie  scope  and  elTect  of  the  same  were 
restricted  in  the  instrnctions  given  to  tlie  jury  i 

'"2.  Did  the  circuit  court  err  in  admitting  in  evidence  the 
instrument  containing  the  dying  declarations  of  the  deceased, 
Jenny  Everson  V  " 

The  cause  was  argued  for  tlie  defendant  by  B.  Dunioiddie^ 
her  attorney,  and  S.  U.  Pinncy,  of  counsel ;  and  for  the  state  by 
the  Attorney-General. 

For  the  defense  it  was  contended :  1.  That  tlie  dying  declara- 
tions of  the  deceased  were  not  admissible  in  evidence.  The  rule 
is,  that  such  evidence  is  admissible  only  "  when  the  death  of  the 
deceased  is  the  subject  of  the  charge,  and  the  circumstances  of 
the  death  the  subject  of  the  dying  declarations  :"  The  Klnrj  v. 
Mead,  2  Barn,  and  Cress.,  605  and  note ;  State  v.  Cameron,  2 
Pin.,  495  ;  Jfiller  v.  State,  25  Wis.,  388  ;  Regina  v.  Hind,  8  Cox, 
300.  In  the  last  case  cited,  it  is  said  that  "  the  reception  of  this 
kind  of  evidence  is  clearly  an  anomalous  exception  in  tlie  law  of 
England,  which  ought  not  to  be  extended."  See  also  11  CI.  and 
Fin.,  108,  112. 

This  kind  of  evidence  is  not  regarded  with  favor,  and  no  case 
like  the  i)resent  can  be  found  where  it  has  been  adjudged  admis- 
sible. The  remarks  of  Redtield,  J.,  in  State  v.  Hoioard,  32  Vt., 
380,  are  mere  dicta.  Physical  or  mental  weakness  consequent 
upon  the  approach  of  death,  a  desire  of  self-vindication,  or  a  dis- 
position to  impute  the  responsibility  for  a  wrong  to  another,  as 
well  as  the  fact  that  the  declarations  are  made  in  the  absence  of 
the  accused,  and  often  in  response  to  leading  questions  and  direct 
suggestions,  and  with  no  opportunity  for  cross-examination  ;  all 
these  considerations  consj)ire  to  render  such  declarations  a  dan- 
gerous kind  of  evidence.  The  rule  of  evidence  is  of  common 
law  (trigin,  and  applied  and  still  applies  only  to  cases  oi  felonious 
homicide  at  common  law.  The  procuring  or  attempting  to  pro- 
cure a  miscarriage  or  abortion  was  not  an  offense  at  common  law, 
if  the  pregnant  woman  was  not  qxtick  with  child,  and  consented 
to  the  act :  State  v.  Cooper,  2  Zab.,  52 ;  Sm,ith  v.  State,  33  Me., 
48 ;  Comm.  v.  Parker,  y  Met.,  263 ;  8  Mass.,  388.  The  statute 
under  which  this  information  was  brought,  is  not  in  atHrmance 
of  the  common  law,  for,  under  it,  it  is  not  material  whether  the 
pregnant  woman  was  quick  with  child.    Our  statutes  declare  cer- 


of  it,  wt 
case  at 
and  in 
this    me 
was  the 
.child    be 
being  th 


differ 


enc 


STATE  V.  DICKINSON.  5 

tain  acts  or  omissions  resulting  in  deatli,  felonious  homicides, 
which  were  not  such  at  common  law  (R.  S.,  ch.  IG-t,  sees.  10-19) ; 
and  the  offense  here  in  question  is  one  of  these  statutory  homi- 
cides. But  the  mertj  characterization  of  the  offense  as  man- 
slau^liter  by  the  statute  does  not  bring  the  case  witliin  the  rule 
admitting  dying  declarations,  just  as  the  statute  defining  the 
term  "  felony,"  when  used  in  any  statute,  does  not  render  appli- 
cable to  every  act  falling  within  such  definition  those  common 
law  rules  which  were  applicable  only  to  felonies:  Wilson  v. 
The  State,  1  Wis.,  184.  In  criminal  matters,  nothing  is  to  be 
taken  by  intendment,  but  the  utmost  strictness  of  construction 
prevails  in  favor  of  liberty  and  life.  It  is  true  that  the  mere  use 
ctf  the  instrument  on  a  pregnant  woman,  witli  the  intent  charged, 
was  a  misdemeanor,  under  section  58,  ch.  169,  R.  S.;  and  that  the 
killing  of  the  deceased  by  such  act,  without  a  design  to  effect 
death,  while  engaged  in  perpetrating  such  misdemeanor,  would 
be  murder  at  the  common  law,  mitigated  by  section  8,  ch.  16-1,  to 
manslaughter  in  the  first  degree;  but  this  information  is  not 
brought  under  that  section.  The  New  York  statutes  on  the  sub- 
jects of  murder  and  manslaughter  and  criminal  abortion  are  in 
the  main  like  ours  (see  Laws  of  N.  Y.  1872,  ch.  181,  sections  1 
and  3) ;  and  in  the  case  of  an  indictment  for  advising  and  pro- 
curing a  pregnant  woman  to  submit  to  the  use  of  an  instrument 
with  intent  to  cause  a  miscarriage,  resulting  in  the  death  of  the 
mother  and  child,  tlie  dying  declarations  of  the  mother  were 
excluded :  People  v.  Davis,  56  N.  Y.,  103.  That  case  seems 
decisive  of  this.  The  offense  there  charged  was  under  section  1, 
ch.  181  of  the  laws  of  New  York  of  1872,  which  expressly 
ileclares  it  to  be  vt,  felony ^  hence  the  killing  of  the  deceased  by 
procuring  her  to  resort  to  means  criminal  under  section  3  of  that 
act,  would  be  felonious  killing,  and  would  be  murder  at  the  com- 
mon law,  or  manslaugliter  under  a  statute  like  ours. 

In  that  case  the  death  of  the  deceased,  and  the  circumstances 
of  it,  were  the  subject  of  the  charge  in  the  same  sense  as  in  the 
case  at  bar.  In  both,  the  substantive  act  was  a  misdemeanor, 
and  in  both  the  death  of  the  mother  was  a  consequence,  and 
this  merely  increased  the  punishment ;  and  in  neither  case 
was  the  death  of  the  mother  essentisil  to  the  oireiise,  that  of  the 
.child  being  sufticient.  The  essential  elements  of  the  offense 
being  the  same  under  the  two  statutes,  it  can  make  no  possible 
difference   that   our   statute  charactei'izes   the   offense   as   man- 


t 

! 


';  ; 


AMERIC.VN  CRIMINAL  IlEPORTS. 


y\i: 


elangliter,  while  the  New  York  statute  does  not.  The  argninent 
drawn  from  supposed  necessity  cannot  be  allowed  to  i)revail, 
although  that  was  the  foundation  of  the  rule.  While  valid  to 
the  extent  of  the  rule  at  conuuon  law,  this  argument  will  not 
suffice  to  extend  it :  Be.o  o.  Mead,  Eegina  v.  Hind,  and  People 
V.  Davis,  supra.  2.  That  the  declarations  of  Jenny  Everson  to 
Mary  Erickson  were  improperly  admitted  in  evidence.  Such 
declarat-':n8  are  not  admissible  for  any  purpose,  unless  the  i)rin- 
cipal  act  which  they  accompany,  and  to  which  they  relate,  was 
itself  material  to  the  isstie,  nor  unless  made  at  the  time  wlien  the 
principal  act  was  done,  nor  unless  they  were  of  a  character  to 
explain  its  true  nature :  Enos  v.  Tattle,  3  Conn.,  250 ;  iVoy^  •«.'  v. 
Ward,  19  Id.,  2G9;  Corinth  v.  Lincoln,  34  Me.,  312;  Moore  v. 
Meacham,  10  ]S.  Y.,  210.  Whether  Jenny  was  or  was  not  a 
consenting  party  to  the  alleged  attempt  at  abortion,  or  "had 
formed  the  purpose  to  go  to  the  defendant  to  have  an  abortion 
perfoi-med  ujjon  her,"  was  not  material  to  the  issue :  Friiik  v. 
Coe,  \  G.  Greene,  556;  Bacon  v.  Charlton,  7  Cush.,  586;  Land 
V.  Tyngshoromjh,  9  Id.,  41 ;  Chapin  v.  Marlborough,  9  Gray,. 
244 ;  1  Tayl.  Ev.,  §§  523-4.  Some  of  these  statements,  relating 
to  what  had  occurred  at  defeudant's  house  between  the  deceased 
and  defendant,  being  a  mere  narration  of  past  occurrences,  were 
clearly  inadmissible  (1  Tayl.  Ev.,  §  526  ;  Nutting  v.  Page,  4^(iray, 
684;  People  v.  Davis,  56  N.  Y.,  101,  102) ;  yet  they  were  calcu- 
lated to  impress  a  jury  strongly  against  defend.ant,  notwithstand- 
ing the  charge  of  the  judge  attempting  to  restrict  the  use  of  the 
evidence ;  and  this  is  sufficient  ground  for  a  new  trial :  La  in  v. 
Shepardson,  23  Wis.,  224;  L^osey  v.  Rice,  29  Id.,  93. 

For  the  state  it  was  contended,  1.  That  the  dying  declarations 
of  the  person  whose  death  is  alleged  to  have  been  caused  by 
defendant  were  properly  admitted.  The  offense  defined  in  the 
statute  under  which  defendant  was  convicted  consists  in  the  kill- 
ing of  a  human  being.  By  Tay.  Stats.,  1889,  §57,  the  using  of 
an  instrument  with  intent  to  produce  miscarriage  is  a  misde- 
meanor; the  death  of  any  person  being  no  part  of  the  offense. 
Dying  declarations  are  admitted  mainly  on  the  ground  of  neces- 
sity (1  Greenl.  Ev.,  lledf.  Ed.,  note  2  to  §15(0,  and  partly  on 
the  ground  that  the  certainty  and  neai-  aj)pi-oaeh  of  death  create 
an  obligation  equal  to  tiiiit  imposed  by  an  oath  in  a  court  of 
justice:  1  Greenl.  Ev.,  §156.  ..nd  note.  These  reasons  apply 
quite  as  strongly  to  this  caso  a-,  to  other  cases  of  homicide.     The 


STATE  c.  DICKINSON. 


rule  is,  that  sucli  declarations  are  admissible  in  cases  of  homicide, 
"where  the  death  of  the  deceased  is  the  subject  of  the  charge, 
and  the  circumstances  of  the  death  are  the  subject  of  tlie  dying 
declarations,"  The  present  case  is  strictly  within  the  rule.  Sue 
Rexv.  Bal'ei\  2  Moody  an<l  Rob.,  53;  State  v.  Terrell,  \'l  Ilicli., 
329.  In  the  English  cases  cited  for  the  defense,  the  death  of  the 
mother  was  not  made  by  the  statute  an  ingredient  of  the  crime, 
and  the  crime  itself  was  only  declared  a  felony  and  not  man- 
slaughter. See  the  statutes  in  Storer  and  Heard  on  Crim. 
Abort,,  105,  et  ti>'q.  In  People  v.  Davis,  56  N,  Y.,  95,  the 
decision  is  put  expressly  upon  the  ground  that  the  offense 
charged  was  not  homicide  in  any  degree.  The  principle  upon 
which  the  rule  of  evidence  rests,  applies  to  all  cases  of  homicide, 
whether  at  common  law  or  by  statute.  But  the  administering 
of  drugs  or  use  of  instruments  to  produce  abortions  was  always 
nuirder  at  common  law,  when  the  death  of  the  mother  followed : 
Storer  and  Heard,  159,  et  se^. 


Cole,  J.  The  first  inquiry  is,  whether  the  declarations  of 
deceased  to  Mary  Erickson  were  admissible  for  the  purpose  of 
showing  her  intention,  and  as  their  scope  and  effect  were 
restricted  by  the  court.  We  are  of  opinion  that  they  were. 
They  constituted  a  part  of  the  res  gestm,  were  contemporaneous 
with  the  main  fact  under  consideration,  and  were  so  connected 
with  it  as  to  illustrate  its  character :  1  Greenl.  Ev.,  §108.  It 
was  certairdy  competent  to  prove  that  the  deceased  went  to  the 
house  of  the  defendant  at  the  time  it  Wiis  charged  in  the  infor- 
mation the  abortion  was  produced.  Upon  the  authorities,  her 
intent  or  purpose  in  going  there  might  be  shown  1)}'  her  declara- 
tions thus  made,  or  previously  made ;  because  such  declarations 
became  a  part  of  the  res  gestw.  For  it  is  evident  the  declara- 
tions were  connected  with  the  act  of  her  going  to  the  defendant ; 
were  expressive  of  the  character,  motive  or  object  of  her  con- 
duct, and  they  are  to  be  regarded  "  as  verbal  acts  indicating  a 
present  purpose  or  intention,  and,  therefore,  are  admitted  in 
proof  like  any  other  material  facts:"  1  Clreenl.  Ev.,  supra,' 
Insurance  Co.  v.  Ifosley,  8  Wall.,  ?>97 ;  Enos  v.  Tattle,  3  Conn., 
247;  Inhabitants  of  Corinth  v.  Inhabitants  of  Lincoln,  34  JMe., 
310;  Lund  and  Wife  v.  Inhahitants  of  Tynysborowjh,  9  Cnsli., 
36 ;  Cutting  v.  Paige,  4  Gray,  581 ;  State  v.  Howard,  32  Vt., 
380 ;  Moore  v.  Meacham,  10  N.  Y.,  207 ;  Peo^yle  v.  Davis,  56 


i/r^ 


^^ 


8 


AMERICAN  CRIMINAL  REPORTS. 


Id.,  96.  It  is  obvious  that  the  mere  act  of  tlie  deceased  going 
to  defeiid.'nit's  liouse  was  equivocal;  it  niiglit  be  innocent  or  not; 
it  miglit  warrant  the  inference  that  slie  went  for  proper  treat- 
ment of  some  aihnent ;  the  declarations  would  render  lier  motive 
clear  and  intelligible.  They,  therefore,  seem  to  us  as  falliiig 
under  the  denomination  of  the  res  gestce,  and  were  admissible 
as  original  evidence  as  distinguished  from  hearsav. 

In  State  v.  Howard,  supra,  the  declarations  of  the  deceased, 
Olive  Ashe,  as  to  the  purpose  of  the  journey  in  going  to  the 
defendant's,  were  held  by  the  court  to  be  admissible  as  part  of 
the  res  gestm.  Upon  this  question,  Redtield,  0.  J.,  oI)serves,  that 
" the  mere  act  of  going  was  equivocal;  it  might  have  been  for 
professional  advice  and  assistance.  The  declarations  were  of  the 
same  force  as  the  act  of  going,  and  were  admissible  as  ])art  of  the 
act."  In  People  v.  Davis,  when  the  deceased  came  home,  in 
answer  to  inquiries  from  her  step-mother,  she  made  statements 
telling  what  had  been  done  to  her  by  Dr.  Orandall  at  his  ofHce, 
and  how  he  did  it,  exhibiting  certain  medicine  which  she  said  the 
doctor  gave  her,  and  stated  what  he  told  her  as  to  taking  it  when 
her  pains  came  on.  The  court  held  these  declarations  incompe- 
tent because  they  were  merely  narratives  of  ])ast  occurrences, 
did  not  become  a  part  of  the  thing  done  at  the  doctor's  office, 
and  were,  therefore,  no  part  of  the  res  gestw.  But  the  court 
say:  "  Had  it  been  shown  that  the  medicine  was  to  be  taken  to 
aid  in  ])roducing  the  miscarriage,  what  was  said  in  respect  to  it 
Mould  have  been  admissible"  (p.  103).  The  conclusion  jvhicli 
we  have  reached  in  view  of  all  ihe  cases  upon  the  subject,  is,  that 
the  declarations  of  the  deceased  made  to  the  witness  Mary 
Erickson  were  so  connected  with  her  act  of  going  to  the  defend- 
ant's as  to  constitute  a  part  of  that  ncX,  and  were  admissible  as 
explanatory  of  that  act.  8ee  /irgi/ia  v.  EJ wards,  12  Va)\  Or. 
Law  Cas.,  230. 

The  secoiul  (juestion  relates  to  the  admissibility  of  the  instru- 
nient  containing  the  dying  declarations  of  the  deceased.  It  is 
insisted  on  the  part  of  the  defendant  that  these  declarations  were 
not  competent  evidence  against  tlie  accnscd.  'I'hf  (pu-stion  Inis 
in  effect  been  decided  adversely  to  this  view  bv  this  conrt.  In 
imierv.  The  State,  25  Wis.,  ;iS4,  i.ud  Tlw  State  ,\  Martin,  30 
Id.,  21G,  it  was  lield  that  dying  d(>clanili(»ns  were  competent 
evidence,  notwithstanding  the  clause  in  the  bill  of  rights  which 
secures  to  the  accused  in  criminal  prosecutions  the^ri'dit  "to 


meet  the 
did  not  I 
was  ado| 
cases  of 
ject  of  tl 
subject  o 
cases  wei 
of  the  d( 
this  is  ai 
second  d( 
Everson 
lier  death 
tions  con 
cases. 

Pmt  it 
miscarrias 
pregnant 
act.     The 
view.     (S 
The  Stati 
Stnte  V.  a 
1  Harris, 
inal  offe 
that  um 
pregnant 
offense  t 
najit  wit 
means  wii 
the  death 
"  The  ..se 
moil  wealf 
miscarriai 
by  such 
law.     So 
the  deat 
attempt, 
the  tnur(l( 
without  li 
of  the  W( 
moi-e  thai 
sent  of  tl 


i  i-M' 


STATE  r.  DICKINSON. 


9 


I 


meet  tlie  witnesses  face  to  face."  It  was  said  that  this  provision 
did  not  oxchule  such  declarations,  because  when  the  constitution 
was  adopted  it  was  well  settled  that  they  were  admissible  in 
cases  of  homicide,  "  where  the  death  of  the  deceased  is  the  sul)- 
ject  of  the  char<)fe,  and  the  circumstances  of  the  death  are  the 
subject  of  the  dyiii<^  declarations."  It  is  true  that  both  these 
cases  were  indictments  for  murder ;  but  the  reason  and  principle 
of  the  decisions  are  strictly  applicable  to  the  case  at  bar.  For 
this  is  an  information  for  homicide,  for  manslaughter  in  the 
second  degree,  and  it  is  very  apparent  that  the  death  of  Jenny 
Everson  is  the  subject  of  the  charge,  and  the  circumstances  of 
her  death  are  the  subject  of  the  dying  declarations.  The  declara- 
tions come,  therefore,  directly  within  the  rule  of  the  adjudged 
cases. 

Ihit  it  is  said  that  the  procuring  or  attempting  to  procure  a 
miscarriage  or  abortion  was  not  an  offense  at  common  law,  if  the 
pregnant  woman  was  not  quick  with  child  and  consented  to  the 
act.  There  are  most  respectable  authorities  in  support  of  that 
view.  (See  Commo7i%oeaUh  v.  Bangs,  9  Mass.,  387  ;  Smith  v. 
The  State,  33  Me.,  48 ;  Commonioealth  v.  Parker,  9  Met.,  263 ; 
tStatev.  Coojh'r,  2  Zab.,  52  ;  contra,  Ifills  v.  The  Commonwealth, 
1  Harris,  Pa.,  (131,  (534.)  Our  statute  makes  such  an  act  a  crim- 
inal offense.  Sec.  58,  ch.  109,  R.  S.  It  will  also  be  remarked 
that  imder  section  11,  ch.  164,  it  is  not  material  whether  the 
pregnant  womati  be  quick  with  child  or  not.  Tlie  statutory 
offense  there  described  consists  in  administering  to  a  woman  preg- 
najit  with  child  any  drug,  or  in  using  any  instrumental  or  other 
means  with  intent  thereby  to  destroy  the  child,  unless,  etc.,  when 
the  death  of  such  child  or  of  such  mother  is  thereby  produced. 
"The  use  of  violence  upon  a  woman,"  says  Shaw,  (1  J  ,  in  Com- 
monvicaJth  v.  Parker,  mpra,  "with  an  intent  to  procure  her 
miscarriage,  without  her  consent,  is  an  assault  highly  aggravated 
by  such  wicked  purpose,  and  would  be  indictable  at  connnon 
law.  So  where,  upon  a  similar  attem])t  by  drugs  or  instrumf'uts, 
tlie  death  (»f  the  mother  ensues,  the  ])arty  making  such  an 
attempt,  with  or  without  the  consent  of  tlie  woman,  is  guilty  of 
the  nim-der  of  tlii'  m(»ther,  on  the  ground  that  it  is  an  act  done 
without  lawful  purpose,  dangerous  to  life,  and  that  the  consent 
of  the  woman  cannot  take  away  the  imputation  of  malice,  any 
mor(!  than  in  case  of  a  duel,  where  in  like  mamu'r  there  is  con- 
eent  of  the  i)ai'tit's"  (p.  2<!r»).     L(»rd   Hale,  in  his   j)leas  of  the 


)»       '.! 


I 


AMERICAN  CRIMINAL  REPORTS. 


m 


crown,  says :    "  If  a  woman  be  with  child,  and  any  person  give* 
lier  a  potion  to  destroy  the  child  within  her,  and  she  takes  it,  and 
it  works  so  strongly  that  it  kills  her,  this  is  murder;  for  it  was 
not  given  to  cure  her  of  a  disease,  but  unlawfully  to  <lestroy  her 
child  within  her,  and,  therefore,  he  that  gives  a  potion  to  this 
end  must  take  the  hazard,  and  if  it  kill  the  mother  it  is  nuirdei- ; 
and  so  ruled  before  me  at  the  assizes  at  Bury,  in  the  year  1G70 : " 
1  Hale,  430.    East,  treating  of  the  law  of  liomic-ide  with  malice 
aforethought,  observes:     "Hither  also  may  be  referred  the  case 
of  one  who  gave  medicine  to  a  woman,  and  that  of  another  wlm 
put  skewers  in  her  womb,  with  a  view,  in  each  ease,  to  procure 
an  abortion,  whereby  the  women  were  killed.     Such  acts  are 
clearly  murder ;    though  the  original  intent,  had    it  succeeded, 
would  not  have  been  so,  but  only  a  great  misdemeanor;  for  the 
acts  were  in  their  nature  malicious  and  deliberate,  and  necessarily 
attended  with  groat  danger  to  the  person  on  whom  they  were 
practiced : "      1  East's  Pleas  of   the  Crown,   2;><  > ;   Russell  on 
Crimes,  .540 ;  Smith  v.   2^ he  State,  sujyni.     Tlu'se  auth(jrities 
show  that  the  olfense  described  in  section  11,  where  the  death  of 
the  mother  ensued  from  the  unlawful  act,  was  murder  at  common 
law,  and  that  the  statute  really  reduced  the  gi'ade  of  the  olfense 
to  manslaughter  in  the  second  degree.     And  it  is  entirely  clear 
that  the  dying  declarations  wouhl  have  been  comj)etent  evidenc^^ 
at  common  law,  where  the  death  of  the  deceased,  as  in  this  i-ase, 
was  the  subject  of    the  (tharge  and  judicial    iM<|uiiT,   and  the 
declarations  relate  to  the  circumstancus  of  the  death.     ITpou  tlmt 
point,  it  seems  to  us  there  is  no  room  for  doul»t.     The  fact  tliat 
the  offense  with  which   the  defendant  is  charged   has  been  miti- 
gated, does  not  change  the  rule  of  evidence.     Tim  ollV-iise  is  still 
homicide,  though  not  murder. 

In  Stitte  0.  //(/'I'd/-'/  there  is  an  express  intimation  that  the 
dying  declarations  of  Olive  Ashe  were  admissible  under  the 
count  for  manslaughter;  but  as  the  defendant  was  actjuitted  on 
that  count,  the  exclusion  of  such  declarations  was  decided  to  bo 
an  innnaterial  (jucstion. 

In  Peojde  v.  Diii^la,  the  defendant  was  charged,  under  section 
1,  ch.  ISl,  laws  of  1872,  with  advising  and  pnjcurini-'  one  Clara 
Perry  to  submit  to  the  use  of  an  instnnnent  by  Dr.  (^randall 
with  intent  to  |)rodu<'e  a  miscarriage  of  the  said'ciara,  and  the 
iudietmeiit  charged  that  the  death  of  the  said  Clara,  and  of  her 
child,  was  produced  by  the  use  of  the  instrument.     But  this  was 


felony   b 

Court  dei 

case  (2  T 

of  appeal 

the  priso 

ground  t 

declaratic 

rule  of  e 

I5arn.  anc 

300,  and  . 

King  V.  1 

to  the  cai 

the  6ubje( 

note  2,"§ 

which  th( 

(See  the  c 

Baker,  2 

declaratioi 

full  ap])rc 

deatli,  and 

evidence. 

This  di.^ 

Tlio  can 

county,  w| 

By  the 

NOTK.— ij 

tho  lioriiicidl 
urn  onliiiari 
I  ho  oliji'ct  sJ 
iiiid  also  till 
tho  cvidi-ncJ 
is  proper  tol 
act,  luid  c\|l 
kept  curcl'uir 
tl)o  sumo  c(i| 

III  .S/„/,i 
niiirdor  of 
cikllcd  "iIkI 
(It.'ccMscd  rij 
Bates  place 
way,  uiul  mII 
olijccled  t(j| 
ndniiliod, 
OI|M;||t  nut 


STATE  V.  DICKINSON. 


ft 


W ' 


felony  by  tho  statute,  and  not  manslangliter.  The  Supreme 
Court  decided  that  the  dyin^i;  declarations  were  admissible  in  that 
case  (2  T.  and  Cook,  212);  but  this  was  overruled  by  the  court 
of  appeals.  The  court  of  appeals  say,  that  the  charge  against 
tlie  prisoner  was  not  homicide  in  any  degree,  and  upon  that 
ground  the  declarations  were  excluded.  The  admission  of  the 
declarations  in  that  case  would  seem  to  have  been  extending  the 
rule  of  evidence.  The  same  is  true  of  The  Kiiig  v.  Mead,  2 
l>arn.  and  Cress.,  605 ;  Reglna  v.  Hind,  8  Cox  Cr.  Law  Cas., 
800,  and  Hex  v.  Ilutchinson,  referred  to  in  note  (a)  to  case  of 
King  V.  Mead,  In  all  these  cases,  while  the  declarations  related 
to  the  cause  of  the  death,  yet  tho  death  of  such  party  wtus  not 
the  6ui)ject  of  inquiry.  These  and  other  cases  are  referred  to  in 
note  2,  §  150,  1  Greenl.  Ev.,  May's  ed.,  and  tho  grounds  upon 
wliich  the  declarations  are  received  as  testimony  are  discussed. 
(See  the  cisses  of  The  State  v.  Terrell,  12  Rich.,  321,  and  Ii*exv. 
Baker,  2  Moody  and  Kob.,  53.)  There  is  no  doubt  that  the 
declarations  were  made  by  Jenny  Evers(Mi  in  extremis,  with  a 
full  ap])rehension  at  tho  time  of  the  danger  she  was  in  and  of 
deatli,  and  we,  therefore,  think  they  were  properly  received  in 
evidence. 

This  disposes  of  the  questions  submitted  for  our  decision. 

The  cause  must  bo  certified  back  to  the  circuit  court  of  Green 
county,  with  this  our  decision. 

By  the  court.     It  is  so  oi'dered. 

NoTK. — In  cuaes  of  lioniicidc,  tlio  (Icdliiriilioiis  of  the  dorcnscd,  made  before 
llio  lioMiici(l(!,  wlicn  aliirtiiigor  noing  to  meet  tlic  accused,  I'or  any  [mrpose, 
;ir(!  ordinarily  iidmittcd  in  cvldcnco  as  part  of  Iho  res  f/istir,  in  order  to  show 
llio  object  sou;;ht  by  the  nieetinj;,  th(t  niolives  which  aniniatcMl  the  (hieeased, 
imd  also  that  tho  inceiinu;  act ujilly  occurred.  Conllned  witidn  tlieso  limits, 
tho  evidence  falls  strictly  within  tho  general  rule,  that  where  an  act  of  a  i)arty 
is  proper  to  bo  jiroved,  tln^  (leclarations  of  the  parlycontcinporanenus  with  the 
act,  and  explanatory  of  it,  are  eipially  adniissible,  Ihit  l\w.  evidence  will  bo 
kept  can^fully  wl! hill  these  limits,  and  slalcnieiits  of  fact  by  the  deceased,  in 
tho  same  coniu'ction,  will  Im!  rejecle<l  as  hearsay. 

In  SItila  r.  J)iil,i,  I'liil.  fiiiw  (X.  ('.),  •,'11,  the  accused  was  trloil  for  the 
murder  of  Laura  Foster.  TIk!  body  of  tho  deceased  was  fouiul  near  a  locality 
culled  "the  Hates  |)la(;o."  A  witness  was  allowed  to  testify  liiat  slic  saw  tho 
deceased  riding  horsebiick;  thai  deceased  told  her  that  she  was  gdirig  to  tho 
Bates  place;  that  the  prisoner  had  returned  just  bel'or(!  day,  was  going  another 
way,  iind  slio  expected  to  ineol  lilin  at  the  Hates  i)lacc.  Tho  prisoner  having 
objected  to  this  testimony,  the  Hupreme  ('"iirt  held  Iliat  it  was  improperly 
ftdmitted,  saying  "tho  conversutiou  between  Mrs.  Scott  and  the  deceiwed 
ought  not  to  htivo  been  mlinlttod  us  evidence.     At  all  events,  no  part  of  it 


t     ' 


m- 


AMERICAN  CRIMINAL  REPORTS. 


except  tbat  the  decenscd  said  she  was  going  to  the  Bates  plarc.  IIow  what 
the  deceased  said  in  repird  to  tlie  jjrisoner's  iiaviii-r  come  just  liefore  day,  and 
where  lie  was.  and  wliere  she  expected  to  meet  liim,  can  in  any  sense  lie  con- 
sidered a  part  of  the  acts  of  the  deceased  *****  we  are  iiiiai))e  to 
perceive." 

In  People  V.  Carklivff,  24  Cal..  (MO,  Die  respondent  was  tried  for  tlie  murder 
of  his  nncle.  The  accused  and  deceased  lived  together,  and  there  were  no 
other  Inmates  of  tlie  house.  The  prosecution  were  allowed  to  prove  Ity  one 
Burns  that  on  the  2Ulh  of  December,  in  the  afternoon,  deceased  told  liiin  that 
the  respondent  (who  had  been  on  a  journey)  would  be  home  tliat  night.  On 
the  morning  of  the  ;{Olh  respondent  went  to  Burns's  house  and  told  him  tbat 
his  uncle  had  been  murdered.  Burns  went  with  respondent  to  tlic  house, 
and  found  the  body  of  deceased  lying  on  the  floor,  the  skull  brokctn  and  throat 
cut.  The  body  w.is  cold,  and  it  appeared  that  the  murder  must  have  been 
comniitled  from  seven  to  ten  hours  before.  The  testimony  of  Burns  was 
ndniilted  for  the  purjwseof  showing  that  respondent  was  in  the  bou.se  when 
tne  nmrder  was  committed.  This  was  held  to  be  error,  the  court  saying: 
"It  is  impossible  to  conceive  on  what  theory  that  declaration  was  adnii.>isiiile. 
If  the  declaration  had  been  made  to  "le  witness  by  any  other  person  it  would 
not  be  contended  that  it  was  adtni  .moIc  in  evidence,  for  evidently  it  wotdd  be 
obno.xious  to  the  objection  that  it  was  hearsay  teslinioiiy." 

In  Kirbii  v.  State,  9  Yerg.  (Tenn.),  ;(8;{,  the  respondent  was  charged  with  the 
murder  of  Peter  EIrod,  who  was  found  dead  with  niaiks  of  violence  upon 
him,  on  the  pine  mountain  in  White  county.  A  wiliu'ss  for  the  state  was 
allowed  to  testify  that  he  nu!t  the  deceased  on  his  way  to  the  nujuntain,  and 
that  deceased  told  him  that  the  respondent  Kirliy  was  to  join  hitn  and  go 
with  him.  This  was  held  to  be  error.  It  was  held  to  be  proi)er  to  show  what 
deceased  said  about  wliere  he  was  going  and  his  jiurpose  in  goiii'j,  but  that 
the  statement  that  respondent  was  going  with  him  was  inadniissilile. 

In  .state  v.  Miner,  17  Kas.,  2lt8,  the  theory  of  the  pro.xeeulion  was  that  the 
respondents  liad  lured  the  deceased  from  Kansas  (Miy  to  Topeka,  and  thciiee 
to  Wichita;  that  at  Wichita  •'  ey  had  drugged  him  and  nii'nlered  bini  by  get- 
ting tire  to  the  building  in  which  he  wa.s.  The  evidence  showed,  among 
other  things,  that  on  the  day  before  the  murder  the  deceased  was  in  Topeka, 
and  there  bade  a  friend  good-by,  and  .said  he  was  going  to  Wichita,  lie  was 
never  .seen  or  heard  of  al'terward.s.  It  was  held  that  the  declaralinn  of  the 
deceased,  that  he  was  going  to  Wichita,  was  properly  admilled  in  evidence, 
the  court  saying:  "Where  a  person  seems  to  be  prei)aring  to  leave  a  certain 
place,  and  does,  in  fact,  leave,  these  ads  and  deelaralioiis  may  be  given  in 

evidence,  along  with  other  evidei ,  as  tending  to  show  that  such  jier.son  did 

in  fact  go  to  such  other  place,  altlioiigh  the  jiarly  against  whom  they  are 
introduced  was  not  present  at  the  time  the  acts  were  performed  or  llio  declar- 
ations made." 

In  Ihn-ni,  v.  Slate,  41)  Ala.,  .170(8.  C.,  1  Am.  (Vim.  Rep.,  •,\^\\  the  respon- 
dent was  charged  with  murder.  The  evidence  tended  to  .«how  that  deceased 
came  to  where  the  respondent  was  with  a  hoslile  purpose.  The  resiiorident 
and.leeea.sed  walked  olT together,  and  tliatdurin-  Iheir  interview  the  respondent 
shot  Ihedeceascd.  It  wasclaimed  h,v  the  respondent  ilmt  he  killed  lb.'  deceased 
In  self-defense.  The  respondent  olTeird  to  iirove  that  when  the  deceased 
Btarled  to  And  him  he  said  that  he  intended  to  kill  Ww.  respon.leni  The  evi- 
dnnce  was  excluded,    The  Supreme  Court  held  that  this  was  error,  and  that  the 


evidence  w 
"admissil) 
going  to  til 
there  is  no 
enable  the 
ate  a  doubt 


BiGAMT  :     . 

to  juri) 
mony  — 
hy  viwt, 

On  a  trial 
solemni 
thereon 
was  not 
rules  an 
Where,  in  b 
coDsidci 
and  it  i 
and  notj 
It  is  improp 
mony, 
marriag 
ing  that 
tion  the 
However  in 
it,  and 
standar 
verdict 
The  district 
to  the 
pencil 
vate  yo 
or  the  , 
new  trii 
by  it,  ai 
sulUciet 

Ekkor 
Hon.  J 
Tho  fac 
point,  (li't'i 
aiisij^iiud  ji 
1.    Giv 


TAYLOR  V.  STATE. 


18 


evidence  was  admissible  as  a  part  of  the  kk  f/cxtir,  saying  that  this  evidence  was 
"  adinis.sil»l(!  to  sliow  the  mental  stai'us  of  the  deceased,  ami  his  motive  in 
iroiug  to  tlio  still-house,  ami  in  inviling  an  interview  with  the  prisoner.  If 
there  is  no  otiier  evidence  of  the  facts  attending  tlic  killing,  this  evidence  may 
enable  the  jury  to  <lctermiao  who  was  tiie  aggressor,  and  may  properly  gener- 
ate a  doubt  of  the  guilt  ot  the  accused." 


Taylor  v.  State. 

(.•52  Miss.,  84.) 

BiGAMT  :  Proof  of  marriage — Mixcondiict  of  jurors — Oiving  memorandum 
to  jurji  —  Idcntil}/  of  tiic  jirM  irife — Marriage  by  coment  idthout  cere- 
mony —  Juror  —  Improper  conduct  —  Instructions  —  Pencil  mcmoramiu  m 
by  mistake.  , 

On  a  trial  for  bigamy,  proof  of  the  first  marriage  by  the  minister  who 
solenuiized  the  rite,  and  the  marriage  license,  with  his  certificate 
thereon,  is  sulllcient  proof.  It  is  not  a  valid  objection  that  the  minister 
was  not  properly  ordained  as  a  nunistcr  of  the  gospel,  according  to  the 
ndes  and  regulations  of  his  church. 

Where,  in  l)igamy,  the  first  wife  wa-i  known  by  two  names,  the  question  to  be 
considered  by  the  jury  is  llie  identity  of  the  woman,  and  not  her  name, 
and  it  is  proper  for  the  court  to  so  instruct  the  jury.  It  is  the  identity, 
and  not  the  name,  that  is  subiiutted  to  the  jury. 

It  is  improper  to  cliarge  the  jury  that  "a  marriage  was  good  without  any  cere- 
mony, and  by  the  mere  consent  of  the  parties,  if  the  parties  intended 
marriage,  and  that  intent  sufllcieiitly  appears."  It  is  deficient  in  not  add- 
ing that  such  consent  and  intcsnt  must  be  followed  up  by  actual  cohabita- 
tion tliereunder  as  man  and  wife. 

However  improperly  jurors  may  talk  about  a  case  in  their  deliberations  upon 
it,  and  diswiss  things  outside  of  the  testimoi'.y,  it  would  be  erecting  a 
standard  t(  higii,  and  would  result  in  a  defeat  of  justice,  to  set  aside  their 
venlict  be'::uise  tliey  will  do  so. 

The  district  attonu-y  asked,  and  the  court  gave,  a  lengthy  printed  instruction 
to  tiie  jury,  at  the  bottom  of  which  the  district  attorney  lia<l  written  in 
pencil  tiese  words:  "This  is  among  a  people  of  loose  ways;  try  to  ele- 
vate your  race."  Held,  that  if  the  testimony  was  in  the  least  conflicting, 
or  the  guilt  of  pris(mcr  in  any  way  left  in  doubt,  the  court  should  grant  a 
new  trial.  But  where  it  is  lmpossil)le  for  the  jury  to  have  been  nusled 
by  it,  and  the  giult  of  the  accused  established  beyond  all  doubt,  it  la  not 
sulllcient  for  a  reversal. 

EituoR  to  tlio  circuit  court  of  Culfa.x  county. 

Ilcjii.  J.  A.  Quit,  Judge. 

Tlio  fiicts  of  the  C1180  nccessiiry  to  a  full  utulcrstandiug  of  tlio 
point  (liHMded  are  set  out  in  the  opinion  of  the  court.  Tho  errors 
apsigiied  are : 

1.     Giving  instructions  for  the  stato. 


ti    ., 


i 


I 


i 


ilk 


'■HI 

;  t 


14  AMERICAN  CRIMIMAL  REPORTS. 

2.  Eefusing  instructions  asked  by  accused. 

3.  Eefusing  to  ijrant  a  new  trial. 
FJanihvi  tC'  Beckett,  for  ])laintill  in  error: 

The  iirst  ciiarijfo  for  tlio  state  is  too  hroad.  The  indictment 
charges  a  former  man-iage  with  ^faria  Calvert,  and  a  .second 
marriaire  witli  Ann  Dawson.     These  allcifations  must  he  proved  : 


24  Miss.,  5(1 


1%  Mi 


Th 


2S  JMiss.,  037;  S  S.  and  ]\r.,  57(5.  llie  jury 
should  have  ac(|uitted  imder  this  indictment :  3  Wharton's  (,'r, 
L,  §§2(i2.'>,  L>()-'7;  Ohio  v.  Mou/-e,  3  West.  L.  Jour..  i;!4.  The 
offense  is  regulated  by  statute:  Ilo.sooe's  Cr.  Kv.,  p.  '2',):];  1 
Bish.  Cr.  L.,  §  5(>2.  The  first  marriage  must  be  valid  :  li(isc<)i''s 
Cr.  Ev.,  pp.  2i)4,  30(V:  3  AVhart.'Cr.  L.,  §  2(535.  In  i)ros(.cnti(.ns 
for  bigamy,  the  actual  mari-iagi!  must  ije  i)roved  :  l^tuvicrs  K. 
Die,  p.  110,  §1(5;  p.  10!),  §  12.  The  sixth  charge  is  too  i»r(>ad 
in  criminal  cases.  It  is  laid  down  in  a  civil  case,  and  is  ohitn' 
dictum,  in  Dickiuson  v.  Broion,  40  j\Iiss.,  370.  ]\Iarriag('s  will 
not  be  presunie<l  in  cases  of  bigamv  as  in  civil  cases:     Koscoe's 

Cr.  Ev.,  ]).  2:»4. 
The  court  shoidd  have  given  the  charges  asked  by  the  accused. 

The  state   must   prove  two   things:     1.     The   two    marriages. 

2.     The  identity  of  the  parties:    lloscoe's  Cr.  Kv.,  pp.  2!)4-;{(>5. 

One  of  the  jurors  ])rejudiced  the  case  :     31  Miss..  4s(» ;  ,'{  Ilo;v. 

27.     See  also  l^furris"  State  Cases,  pp.  1051,  !>15,  (574,  50!»,  47(5, 

473,430,  ;5i)t>,  3!t2.  113.  107. 

G.  E.  J/ar/'k,  attorney -general,  for  the  state 


The 

Miss 


The  first  charge  defines  the  oll'eiise  ;     jlov.  Code  1S71,  !^  2505. 

le  regularity  of  the  ministers  ordination  is  innnaterial  :     4J» 

iss.,  357;  Const.  Miss.,  art.  12.  jj  22. 

The  proof  establishes  a  marriage  binding  in  its  elfeet,  and  not 
dependent  upon  mere  consent  of  the  j)arties  followed  by  cohabi- 
tation, or  upoji  any  presumption  of  law.  P.oth  the  first  and  second 
marriages  are  established,  and  the  accused  is  guiltv  bevoiul  all 
possible  doubt,  and  1  resi)ectfully  submit  that  there  is  iio  error 
shown  in  the  record. 

Chalmkus,  J.,  delivered  the  o])inioii  of  the  court. 

The  i)laintifT  in  error  was  convicted  (d'  (he  crime  of  bigamy. 
The  contest,  as  usual  in  such  cases,  was  us  to  the  proof  of  tl'io 
first  marriage.  We  think  it  was  most  condusivelv  established. 
The  mi.iister  who  solemnized  the  rites  testilied  to  the  fact,  and 


I 


I 


produced 

?nance  of 

It  is  ol 

properly 

Jni Mister  > 

1 1  is  W( 

the  fact  i 

actod  as  f 

713;   //.^ 

The  h'l" 

the  marri 

Calvert,  v 

nient.     Jt 

])erson.     ] 

of  the  coi 

The  jui 

first  time  ; 

is  shown  t 

need  not  b 

Diarried,  h 

The  jur 

of  the  ])er 

The  jury  \ 

any  cereiii 

parties    inl 

This  instnl 

intent  mnj 

man  and  \| 

however,  ;| 

colial»itati(| 

it  was 
coui't  belol 
master  of 
the  accuse 
by  the  alii 
convictioni 
to  the  jnvi 
•nay  be  fj 
outside  of| 
iiiid  would 
because  th^ 


I 


I 


TAYLOR  r.  STATE.  |5 

produced  tlie  inarria<i^e  liocnso,  witli  his  certificate  of  the  perfor- 
mance of  tlie  cereniony  indorsed  thereon. 

It  is  objected  tliat,  according  to  liis  own  testimony,  he  was  not 
properly  ordained,  as  was  sliown  by  tlie  testimony  of  another 
minister  of  tin-  same  faith. 

It  is  well  settled  that  his  open  claim  of  beinir  a  minister,  and 
the  fact  that  he  was  irenerally  understood  and  recogni/.ed  and 
acfod  as  such,  is  all  that  is  necessary  :  Whart.  Cr.  L.,  §§  2034, 
713  ;  /A///.?  V.  The  People,  i>5  N.  Y.,  390. 

The  first  wife  was  known  by  two  names.  She  was  styled  in 
the  marriage  license  IVlaria  Draper.  She  was  married  as  Maria 
Calvert,  was  usually  so  known,  and  was  so  named  in  the  indict- 
ment. It  was  sufficiently  proved  that  she  was  one  and  the  same 
])er>on.  Nor  was  any  injustice  done  defendant  by  the  rulings 
of  the  court  on  this  subject. 

The  jury  were  charged  that  "if  the  defendant  married  the 
first  time  any  woman  going  by  the  name  of  ISfaria  Calvert,  who 
is  shown  to  be  now  living,  then  the  identity  of  said  first  woman 
need  iiot  be  further  shown  than  that  she  was  the  person  actually 
married,  be  her  name  whatever  it  may." 

The  jury  were  thus  correctly  instructed  that  it  was  the  identity 
of  the  ])erson,  and  not  the  name,  that  was  sultmitted  to  them. 
The  jury  were  further  charged  that  a  marriage  was  good  without 
any  ceremony,  and  hy  the  men^  consent  of  the  ])arties,  if  the 
]»arties  intend  marriage,  and  that  intent  sufficiently  a])[)ears. 
Tills  instruction  is  (h'ticlent  in  not  adding  that  such  consent  and 
iiitrnt  must  he  t'ollowiul  up  by  actual  cohabitation  thereunder  sis 
man  and  wife.  The  error  was  wholly  immaterial  in  this  case, 
however,  as  there  was  full  ])roof  of  a  valid  ceremony  and  actual 
coiialtitatlon. 

It  was  made  ground  for  the  motion  for  a  new  trial  in  the 
court  below  that  (»n(^  of  the  jurors,  who  had  been  the  former 
master  of  the  defendant,  stated  in  the  jury-ro(»m  that  ho  knew 
tlif  accused  lia<l  at  least  three  wives.  This  was  made  to  appear 
by  the  alli<lavit  of  a  ]»arty  to  whom  this  juror  told  It  after  the 
conviction,  statltiijc  nt  the  same  time  that  this  statement  bv  hi 


m 


to  th 


le  jury  had  produced  tin;  conviction.  However  improper  it 
may  be  for  jurymen  to  discuss  in  their  delilieratlons  anything 
outside  of  the  testimony,  it  would  l»e  erecting  too  high  a  standard 
and  would  result  in  a  defeat  of  justice,  to  set  aside  their  verdict 
because  they  will  do  so.     The  surmise  of  the  juror  in  this  cnso, 


i 


'♦'  I'i 

1      M 


16 


AMERICAN  CRIMINAL  REPORTS. 


that  the  fact  stated  by  him  had  caused  the  conviction,  could  not 
of  course  be  considered  by  the  court. 

A  new  trial  was  also  asked  because  of  some  improper  words 
written  by  the  district  attorney  on  one  of  his  instructions. 

It  appears  that  the  disti-ict  attorney  had  a  lot  of  pi'iiited 
instructions  on  the  subject  of  reasonable  doubts.  One  of  these 
printetl  cojiies  was  y-iven  by  the  court  to  the  jury.  Its  adiniralde 
statement  of  the  doctrine  tempts  us  here  to  set  it  out: 

"The  defendant  is  presumed  to  be  innocent  until  he  is  proved 
to  be  guilty,  and  this  presinuption  extends  to  the  whole  crime 
charged  against  him — innocent  of  the  overt  act,  innocent  of  the 
felonious  intent,  imiocent  of  the  whole  crime,  and  imiocent  of  all 
its  parts;  and  the  guilt  of  the  accused  must  be  fully  and  conclu- 
sively established  to  a  moral  certainty.     No  preponderance  of 
evidence,  nor  weight  of  preponderant  evidence,  is  sufficient  to 
warrant  conviction  unless  it  is  so  convincing  as  to  generate  full 
belief,  to  the  exclusion  of  every  reasonable  doubt.     But  reason- 
able doubt  is  not   vague   cotijecture,  nor   mere  supposition  or 
hypothesis,  but  it  is  such  doubt  as  reasonably  arises  out  of  the 
testimony — a  doubt  for  which  a  reason  can  be  eriven. 

"Mathematical  or  demonstrable  certainty  is  not  required. 
While  the  testimony  should  be  ecpial  to  that  which  controls  and 
decides  the  conduct  of  men  in  the  highest  and  most  important 
affairs  of  life,  all  that  is  recpiired  to  enable  a  jury  to  return  a 
verdict  of  guilty  is,  after  a  comparison  and  considur.ition  of  all 
the  testimony,  to  believe  conscientiously  that  it  establishes  the 
guilt  of  the  defendant  as  chai-ged."' 

At  the  bottom  of  this  printed  (iliargo,  the  district  attorney  had 
written  in  pencil  these  words :  "This  is  among  a  people  of  loose 
ways;  try  to  elevate  your  race."  It  is  conct.vlod  that  the  printed 
copy  upon  which  these  words  had  been  written  was  unintention- 
ally given  to  the  jury.  The  words  were  probably  intended  as 
affording  the  suggestion  of  a  point  to  be  eiaborateti  in  oral  argu- 
ment. It  is  insisted,  liowever,  that  inasmuch  as  the  accused  wjis 
a  colored  man,  and  a  numher  of  his  own  race  wcjre  on  the  jury, 
the  words  were  liable  to  he  mistaken  by  the  jurors  for  a  portion 
of  the  charge,  and  as  constituting  a  judicial  exhortation  to  con- 
vict the  prisoner  for  the  good  of  their  race.  If  we  could  believe 
that  such  a  mistake  could  possibly  have  been  made,  or  if  the 
testimony  was  in  the  least  conllicting,  or  the  guilt  of  the  prisoner 
in  any  way  left  in  doubt,  we  should  feel  it  our  duty  to  give  him 


TAYLOR  c.  STATE. 


m 


a  new  trial.  Deerniiiiif  it  impossible  that  the  jury  could  have 
been  misled,  and  the  guilt  being  established  beyond  any  room 
for  (juestion.  we  must  decline  to  do  so. 


Judgment  affirmed. 


Xoi'K — In  some  of  the  states  it  has  been  held,  where,  in  a  criminal  case,  it 
was  fi)uii(l  iicf'A'ssiiry  to  prove  a  marriage  in  order  to  convict  the  defendant  of 
the  crime  with  which  lie  was  charged,  that  all  the  requisites  essential  to  a 
valid  nuirriage  must  be  strictly  proved,  as  well  as  the  law  of  the  state  or 
country  where  the  marriage  was  celebrated,  and  also  that  the  admissions  of 
the  defendant,  cohabitation,  and  reputation,  were  not  sufficient  evidence  of 
sucli  a  marriage.  But  experieuci;  has  proven  that  such  a  rule  in  the  United 
States  amounts,  in  a  large  number  of  cases,  to  a  denial  of  justice.  Our  people 
are  migratory  in  their  habits,  and  very  many  of  our  foreign  born  citizens  were 
married  in  the  countries  where  they  were  born.  To  prove,  in  Missouri,  a 
marriage  which  was  celebrated  in  Bavaria,  or  even  in  Canada,  within  the  rule 
iidoptcd  in  some  cases,  is  oftentimes  an  impossible  task.  Doubtless,  because 
of  this  ditllculty,  tliu  rule  has  been  modified,  and  the  better  doctrine  now  is, 
iluit  cohabitation,  reputation  and  admissions  are  sufficient  evidence  of  a  legal 
marriage  to  submit  to  a  jury.  The  following  are  the  principal  authorities  oa 
this  subject: 

In  State  v.  Roswell,  6  Conn.,  446,  a  prosecution  for  incest,  the  majority  of 
the  court  held  that  "  neither  cohabitation,  reputation,  nor  the  confessions  of 
the  prisoner,"  are  admissible  to  prove  his  marriage,  following  Cam.  v.  Little- 
John,  15  Mass.,  IGI},  wliere  admissions,  cohabitation,  and  reputation  were 
held  insufiicient  evidence  of  a  marriage,  and  a  conviction  reversed  on  that 
ground. 

In  Penph  V.  JIumphrey,  7  .Tohus. ,  314,  where  the  only  evidence  of  the  mar- 
riage was  tlic  admission  of  the  prisoner  to  the  magistrate  before  whom  he  was 
l)rought,  it  was  decided  l)y  tlie  Supreme  Cotirt  tliat  the  evidence  was  insuffi- 
cient. So  ill  (htlKifiait  v.  Pi-f)/)!,;  1  Parii  Cr.  (N.  Y.),  378,  it  wm  held  that  "in 
till'  trial  of  an  indictment  for  l)igamy,  tlie  confessions  of  the  defendant,  though 
Mi;ip()rlcd  by  proof  of  coliahitation  and  reputation,  are  not  sutlicient  to 
e^hiblish  tlie  first  inairiage."  And  in  an  early  case  in  Michigiin  (/'(oyjfc  v. 
/.(iinlicrt.  't  .Midi.,  ;>{'.)),  a  conviction  for  bigamy  was  set  aside  because  the 
l.iws  of  New  ,Tei-ey.  where  the  iiiiirriiige  took  place,  were  not  sulliciently 
IHoveu,  the  court  lioldinti;  lliat  cohaliilation  and  aihnissions  were  not  suHicient 
evideiuM!  of  the  niai  ri.ine,  iiiid  that  "  proof  not  only  of  a  marritige  in  fact,  but 
of  a  valid  marriM,i:e,  Meconling  to  the  laws  of  New  Jersey,  iniisl  be  made  by  tlie 
proseeulioii."  But  in  a  later  case  in  Michigan  {Flutchinn  v.  Kinimd,  31  jMicli., 
126),  in  an  action  lor  criiuiiifil  coiiver-ation,  the  court  hold  that  proof  of  llie 
foreign  law  is  not  nece.s.saiy.  Grccnleaf  lays  it  down,  that  in  prosecutions  for 
bigamy  the  marriage  may  be  proved  "  by  the  deliberate  admission  of  the  pris- 
oner himself;"  S  drrvul.  Ei\,  ^  ilo.'^.  Tlie  following  cases  hold  that  evidence 
of  the  admissions  of  the  defendant,  coupled  with  cohabitation  and  reputation, 
are  siitlliMcnt  evidence  of  a  marriage  to  leave  to  the  jury:  O'Neiile  v.  Com.,  17 
Uralt.  (Va.),  :)H-i;  Slate  i\  Seals,  16  liid.,3.')2;  Com.  v.  Murtngh,  1  Ashm.  U.  (Pa.), 
2Ti;  WolJ'etioii  e.  S/at,:,  16  Ohio,  173;  Langfiy  i\  State,  30  Ala.,  530;  State  i\  Brit- 
ton,  \  .McCord(S.  C;.),  3."t6;  Caufvrd'n  Ca.s,,7  Me.,r);;  Com.  v.  Jackson,  11  Bush 
(Ky.),  67!),  S.  C.,  1  Am.  Cr.  Uep.,  74.  In  \Ve»t  v.  State,  1  Wis.,  200,  the  court  hold 
Voi„  II.- 'J 


■J^f 


n 


AMERICAN  CRIMINAL  REPORTS. 


that  a  mere  iulmission  carelrssly  made  by  the  ciefondant  that  the  woman 
charged  to  be  Iiis  wife  is  his  wife,  is  insiitflcicnt  evidence  of  the  fact;  i)Ut 
that  a  serious  and  solemn  admissiou  by  tlie  defeudant  that  a  marriage  was 
solemnized  between  them,  is  evidence  of  the  fact  sufBcient  to  be  submitted  to 
a  jury.  Dmen  v.  State,  53  Ala.,  338,  is  a  case  wliere  the  court,  n"i  denying 
the  general  rule  as  laid  down  in  Langtry  v.  State,  mpra,  yet  hold  the  evidence 
in  that  case  insulBcient.  Besides  the  case  cited  in  the  opinion,  (he  ca.se  of 
Stnte  v.  Abba/,  29  Vt.,  60,  is  an  authority  that,  upon  a  tri  il  for  bigamy,  evi- 
dence that  the  person  by  whom  a  marriage  ceremony  was  performed  was 
reputed  to  be,  and  that  he  acted  as  a  magistrate  or  minister,  is  admissible,  and 
is  sufficient  prima  facie  proof  of  his  official  or  ministerial  character. 


KisTLER  V.  State. 

(54  Ind.,  400.) 

Blackmail;    Indictment  —  Evidence  in  mitigation  of  punishment — Charge  ait 

to  good  cfiaracter. 

An  indictment  which  alleges  in  substance  that  the  respondent  tlireatcned  to 
falsely  accuse  the  prosecutor,  through  handbills  and  newspapers,  of 
keeping  a  woman  as  his  mistress,  with  intent  to  extort  money  or  property 
from  him,  is  sufficient  under  the  Indiana  statute:    "J  11.  S.  187(5,  p.  449. 

Where  the  jury  must  fix  the  punishment  of  tiie  respondent  if  they  find  him 
guilty,  the  respondent  has  a  right  to  prove  on  the  trial,  in  mitigation  of 
punishment,  that  he  has  already  been  imprisoned  on  the  same  charge,  for 
a  long  time,  and  the  jury  should  consider  such  evidence  in  mitigation  of 
punishment. 

It  is  error  for  a  court  to  modify  a  request  to  charge  that  "evidence  of  good 
character  is  to  be  taken  into  consideration  in  determining  the  guilt  or 
innocence  of  the  accused"  by  adding,  "but  where  guilt  is  positively 
proved,  then  good  character  will  not  .benelit  the  defendant."  I'roof  of 
good  character  is  evidence  to  be  weighed  by  the  jury,  on  the  question  of 
the  defendant's  guilt,  irrespective  of  the  app»-';nt  conclusiveness  or  incon- 
clusiveness  of  the  other  evidence. 

NiBL.vcK,  J.  The  indictment  in  this  case,  wliieli  was  returned 
into  court  on  tlie  11th  day  of  November,  A.  D.  1875,  by  tlie 
grand  jury  for  Marion  county,  cliarged  "tliat,  on  the  first  day  of 
August.  A.  J),  1874,  at  and  in  said  county  and  state,  one  John 
Kistler  did,  tlieii  and  tliere,  unlawfully  and  feloniously,  verbally 
and  orally,  make  tlireats  to  one  Adain  ITeretli  tliat  he,  the  said 
Kistler  would  falsely  accVise  the  said  Adam  Ilereth  of  certain 
immoral  conduct  which,  if  true,  would  tend  to  and  would 
degrade  and  disgrace  the  said  Ilereth,  to  wit,  that  he,  the  said 
Adam  Ilereth,  had  been  k('('|»ing  ona  Nellie  Delo.ss  as  his,  the 
Baid   Adam   llereth's,   mistress,  and   had,  at  divers   times  and 


KISTLER  V.  STATE. 


19 


places,  had  sexual  intercourse  with  and  carnal  knowledge  of  her, 
the  said  !Nellie  JJeluss,  not  being  lawfully  married  to  her,  the 
said  Nellie  Deloss,  and  having  then  and  there  a  lawful  wife  liv- 
ing, which  said  charge  and  accusation  he,  the  said  John  Kistler 
did,  then  and  there,  verbally  and  orally,  to  the  said  Hereth, 
threaten  to  jjublish,  by  having  it  printed  in  the  public  newspa- 
pers and  i)rints  then  and  there  in  circulation  among  the  people 
of  said  county  and  state,  and  by  having  the  same  printed  in  the 
form  of  circulars  and  hand-bills,  and  distributed  among  the 
peoj)le  of  said  county,  with  intent,  then  and  there,  and  thereby, 
to  extort,  gain,  and  obtain  from  him,  the  said  Adam  Hereth, 
chattels,  moneys  and  valuable  securities  of  him,  the  said  Adam 
Hereth,  the  kind,  character,  description  and  value  of  said  chattels, 
moneys  and  valuable  securities  being  to  said  jurors  unknown,  and 
with  intent,  then  and  there,  and  thereby,  to  gain  other  pecuniary 
advantages  of  said  Hereth,  the  exact  nature  of  which  are  to  the 
grand  jurors  unknown,  and  can  not  be  given." 

A  motion  to  quash  the  indictment  was  entered  and  overruled, 
and  the  defendant  excejited. 

Upon  a  plea  of  not  guilty,  and  a  trial  by  a  jury,  there  was  a 
verdict  of  guilty,  fixing  the  punishment  at  imprisonment  for 
three  years  in  the  state  prison.  The  court,  after  considering  and 
overruling  a  motion  for  a  new  trial,  and  properly  noting  excep- 
tions, rendered  judgment  on  the  verdict. 

The  appellant  assigns  for  error  in  this  court : 

1st.     The  overruling  of  the  motion  to  quash  the  indictment. 

2d.     The  overruling  the  motion  for  a  new  trial. 

This  case  was  in  this  court  before,  on  a  previous  indictment. 
iSee  Kixtliv  V.  The  State,  50  Ind.,  229.  The  indictment  was  then 
held  to  be  defective,  and  the  judgment  on  it  was  reversed  on 
that  account. 

The  indictment  now  before  ns  is  free  from  tlie  objection  held 
to  be  well  taken  to  the  former  indictment,  and  is,  we  think,  sub- 
stantially sulHcient  \md(5r  the  statute.  See  2  K.  S.  1876,  p.  449. 
We  are,  tlierefore,  of  the  oj>inion  that  the  court  did  not  err  in 
ovei  ruling  the  motion  to  quash  tlie  indictment. 

On  the  trial  (if  \\\i\  cause  the  Jippellant  offered  to  prove,  in 
niitipition  of  any  ])iinishment  which  might  be  adjudged  against 
or  iiillicted  upon  liim,  that  he  had  already  l»een  imprisoned  in  the 
county  jail  and  in  the  state  prison,  for  the  period  of  eighteen 
months,  for  the  same  olfense  on  which  he  was  then  on  trial.     The 


'''\ 


^:  AMEBIC/  N  CRIMINAL  REPORTS. 

court  refused  to  permit  him  to  make  tliis  proof,  and  that  refusal 
was  one  of  the  causes  assigned  for  a  new  trial. 

Our  constitntion  provides  that  "cruel  and  unusual  punishment 
■  shall  not  be  intiicted,"  and  that  "  all  penalties  shall  be  propor- 
tioned to  the  nature  of  the  offense."    See  Constitution,  art.  1^ 
sec.  16, 1  E.  S.  1876,  p.  23. 

This  provision  of  our  constitution,  which  is  so  entirely  in 
accord  with  the  principles  of  natural  justice  and  of  an  enlight- 
ened public  policy,  lays  down  certain  fundamental  rules  which 
are  obligatory  in  the  administration  of  public  justice  in  this 
state. 

According  to  the  old  law,  all  the  jury  had  to  do  was  to  deter- 
mine the  question  of  guilt  or  innocence.  It  was  the  duty  of  the 
court,  after  a  verdict  of  guilty,  to  declare  the  punishment  which 
the  law  imposed.  If  any  discretion  was  permitted  as  to  the  pun- 
ishment, that  discretion  was  exercised  by  the  court  alone.  Cir- 
cumstances, whether  in  aggravation  or  in  mitigation,  were  con- 
sidered by  the  court,  when  brought  to  its  attention  by  the 
evidence. 

We  think  it  still  the  correct  practice,  when  it  devolves  upon 
the  court  to  determine  the  punishment,  cither  upon  its  own  find- 
ing or  on  a  plea  of  guilty,  for  it  to  hear  evidence  in  aggravation 
or  in  mitigation,  as  tiie  case  may  be,  where  there  is  any  discre- 
tion as  to  the  punishment. 

In  our  present  criminal  code,  it  is  enacted  that,  "AVlien  the 
defendant  is  found  guilty,  the  jury  must  state  in  their  verdict 
the  amount  of  line,  and  the  punishinent  to  be  inflicted  : "  2  R.  S. 
1876,  p.  404,  see.  116. 

This  is,  in  suljstance,  a  re-enactment  of  what  has  long  been  tlio 
law  of  our  state.  Hence  our  juries,  in  criminal  causes,  are  not 
only  required  to  determine  the  punishmeiit,  where  there  is  a  ver- 
dict of  guilty,  but  are  also  invested  with  all  the  discretionary 
power  in  regard  to  such  punishment  that  formerly  belonged 
exclusively  to,  which,  under  certain  circumstances,  is  still  exer- 
cised by,  the  courts.  While  punishing  the  guilty,  they  are, 
equally  with  the  courts,  required  to  see  to  it  that  no  cruel  and 
unusual  punishments  are  inflicted,  and  that  all  penalties  are  pro- 
portioned to  the  nature  of  the  offense. 

In  considering  the  question  of  the  nature  or  the  extent  of  the 
punishment,  the  juries  are  now  fairly  entitled  to  all  latitude 
which  the  courts  have  rightly  exercised,  in  hearing  evidence  tend- 


KI8TLER  V.  STATE. 


2t 


ing  to  enlighten  them  in  the  exercise  of  a  sonnd  judicial  discretion. 
Where  a  person  has  already  snflFered  sotne  punishment  on  account 
of  an  alleged  offense,  we  think  he  ought  to  be  entitled  to  prove 
such  punishment  in  mitigation  of  any  further  punishment  which 
might  be  inflicted,  on  a  subsequent  trial  for  the  same  offense. 
Any  other  rule  would  make  it  hazardous  for  a  person  convicted 
on  an  erroneous  judgment  to  ask  for  a  reversal  of  the  judgment 
after  any  considerable  portion  of  the  punishment  has  been  inflicted. 
Any  other  rule  would  have  the  effect,  in  many  cases,  of  with- 
holding evidence  proper  to  be  considered  in  adjusting  the  pun- 
ishment to  the  nature  of  the  offense.  So,  where  a  defendant  has 
been  imprisoned  in  the  county  jail,  on  a  criminal  charge,  previous 
to  his  trial,  we  think  he  is  entitled  to  prove  that  imprisonment 
on  tiie  trial,  as  a  circumstance  to  be  considered  by  the  jury  in 
connection  with  the  punishment,  if  he  shall  be  found  guilty. 

We  are  of  opinion,  therefore,  that  the  court  erred  in  refusing 
to  permit  the  appellant  in  this  cause  to  prove  his  previous  impris- 
onment in  the  county  jail  and  in  the  state  prison,  in  mitigation 
of  the  subsequent  punishment  which  was  liable  to  be  inflicted 
•ipon  him,  and  as  the  punishment  imposed  was  greater  than  the 
minimum  authorized  in  such  cases,  he  may  have  been  injured  by 
this  refusal. 

After  the  evidence  had  been  concluded,  the  appellant,  amongst 
other  things,  requested  the  court  to  instruct  the  jury,  that 
"  evidence  of  good  character  is  admissible  in  criminal  cases,  and, 
when  proved,  is  to  be  taken  into  consideration  in  determining 
the  guilt  or  iimocence  of  the  accused."  This  instruction  the 
court  gave,  but  with  the  following  modification :  "  But  where 
the  guilt  is  positively  proved,  then  good  character  will  not  bene- 
fit the  defendant."  To  this  modification  the  appellant  excepted, 
and  the  action  of  the  court  in  making  it  was  also  assigned  as  one 
of  the  causes  for  a  new  triil. 

It  was  formerly  very  generally  held  that  the  previous  good 
character  of  the  defendant,  in  a  criminal  proceeding,  could  only 
be  taken  into  consideration  in  a  doubtful  case.  A  leading  case, 
holding  that  view  of  the  law,  is  that  of  The  United  States  v. 
lioiidenhmh,  I  liald.,  514.  In  that  case  there  was  evidence  of 
tlie  previous  good  character  of  the  defendant.  The  court 
instructed  the  jury  that  evidence  of  the  previous  good,  or  the 
previous  bad  character  of  the  defendant  might,  in  certain  con- 
tingencies, be  considered  by,  and  have  weight  with  them,  but 


I      \ 


22 


AMERICAN  CRIMINAL  REPORTS. 


that  "wlion  the  cvideiice  is  clear,  either  way,  cliaracter  is  ont  of 
the  question." 

In  n  "Rusfl.  Crimes,  300,  it  is  said  tliat  "  juries  have  «renerally 
been  told  that  whore  the  facts  ])i-oved  are  such  as  to  satisfy  their 
minds  of  the  ijuilt  of  tiie  ])arty,  character,  however  excellent,  is 
no  sul)]'ect  for  their  consideration;  but  that  when  they  entertain 
any  doubt  as  to  the  gnilt  of  the  party,  they  may  properly  turn 
their  attention  to  the  good  character  which  lie  has  received. 
It  is,  however,  subiuitted  with  deference  that  the  good  character 
of  the  party  accused,  satisfactorily  established   by  competent 
witnesses,  is  an  ingredient  which  ought  always  to  be  submit '.od 
to  the  consideration  of  the  jury,  together  with  the  other  facts 
and  circunislances  of  the  case.     The  nature  of  the  charge,  and 
the  evidence  by  which  it  is  supported,  will  often  render  such 
ingredient  of  little  or  no  avail;  but  the  more  correct  course 
seems  to  be,  not  in  any  case  to  withdraw  it  from  consideration, 
but  to  leave  the  jury  to  form  their  conclusion,  upon  the  whole 
of  the  evidence,  whether  an  individual  whose  character  was  pre- 
viously uid)lemished,  has  or  has  not  committed  the  particular 
crime  for  which  he  is  called  upon  to  answer."     See,  also,  3 
Greenl.  Ev.,  25,  in  which  a  like  modern  rule  is  laid  down. 

In  the  case  of  licmsin  v.  The  People^  4;{  X.  Y.,  (i,  tlu;  charge 
to  the  jury  in  the  court  below  was,  in  substance,  very  similar  to 
the  one  we  are  considering.  In  reviewing  that  charge,  the  court 
of  appeals  say  :  "  It  was  error  to  charge  the  jury  that  in  any 
case  evidence  of  good  character  would  be  of  no  avail.  There  is 
no  case  in  which  the  jury  may  not,  in  the  exercise  of  a  S(»und 
judgment,  give  a  prisoner  the  benefit  of  a  previous  good  clmrac- 
ter.  No  matter  how  conclusive  the  other  testimony  may  appear 
to  be,  the  character  of  the  accused  may  be  such  as  to  ci-eate  a 
doubt  in  the  minds  of  the  jury,  and  lead  them  to  believe,  in 
view  of  the  improbabilities  that  a  person  of  such  character  woidd 
be  guilty  of  the  offense  charged,  that  the  other  evidence  in  the 
case  is  false,  or  the  witnesses  mistaken.  An  individual  accused 
of  critne  is  entitled  to  have  it  left  to  the  jury  to  form  their  con- 
clusion njion  all  the  evidence,  whether  he,  if  his  character  wa.s 
previously  umbjemishcfl,  has  or  has  not  committed  th((  particular 
crime  alleged  against  him."  The  court  then  cites  Kuss.  (^-iinea 
and  Greenl.  Ev.,  Hiiprn. 

In  the  case  of  Storn' v.  Tho  Pcnplv,  r.i;  X.  V..  ;?i:..  the  court 
held,  that  it  was  erroneous  to  cliargo  that  "  when  there  is  direct 


evidence 
characte 
The  \\ 
in  favor 
ingreiliei 
without 
charactei 
X.  C,  <1 
Ci-im.  La 
^e  a  I 


W 


niaking  t 
till'  apj)el 

Other ( 
appellant 
arrived,  j 
l>resent  p 

The  ju 
the  pi  ope; 


An  indictinl 
note  of  I 
fiivor  o| 
bad. 
To  rnalj 
rcccivfi 

Nnu,.\r 
tion  thirtj 
and  pnlli^ 

The  iiiij 
formal  pal 
in  the  y('![ 
four,  one 
and  therd 
iiig  there 
at  said  col 
to  comm 


STATE  V.  WALLS. 


23 


evidence  of  the  commission  of  a  crime  by  a  prisoner,  then,  <!;ood 
dianu'ter  _i;oes  for  nau<;lit.'" 

The  \vcii!:ht  of  modern  authority  seems  to  be  overwliebiiingly 
in  favor  of  the  rule  tliat  proof  of  jj^ood  diaraetcr  constitutes  an 
in<ijredient  to  be  considered  l)y  the  jury,  in  all  criminal  casrs, 
without  ret'ereuce  to  the  apparently  conclusive  or  inconclusive 
character  of  tiie  other  evidence,  ^aa  State  v.  Henry,  5  Jones, 
N.  C„  <;:, ;  li,',c  V.  Stinwanl,  7  Car.  and  P.,  673  ;  1  Whart. 
("rim.  Law,  7th  ed..  (U4. 

We  are  of  the  opinion  that  the  court  below  also  erred  in 
making'  the  mo(liiication  it  did  to  the  instructions  prayed  for  by 
thi'  appellant,  and  in  j!;ivin<5  the  instructions  as  thus  modified. 

Other  questions  are  raised  on  the  record  and  discussed  by  the 
appellant  in  his  brief,  but  the  conclusions  at  which  we  have 
arrived,  render  it  unnecessary  for  us  to  consider  them  as  at 
jtresent  presented. 

The  judfjjment  is  reversed,  and  the  clerk  is  directed  to  issue 
the  pioper  notice  to  the  Avarden  of  the  state  prison. 


\UA 


Statk  v.  Walls. 

(M  lud.,  501.) 

BuinEKY;    Void  prommory  notes — Tndirtment. 

An  indictment,  charsiiiu;  ii  iinisticutiiijj:  olHcer  with  rwcivint,' the  promissory 
not(!  of  im  lU'cwsod  per.son  as  u  bribe  to  inlliuMicL'  his  otHeial  couduet  in 
favor  of  tin-  accused  person  in  a  criminal  prosecution  tlien  pending,  is 
l)ad.  A  itroinissory  note,  u:iven  for  sudi  a  puri)osc,  is  absolutely  void. 
To  nial<c  out  a  case  of  iiriiu'ry,  it  mu.st  be  shown  that  the  olUcer  uctually 
recelvetl  soniethini;  of  value. 

Niiila«:k,  .1.  This  was  a  prosecutioti  for  bribery,  under  sec- 
tion thirty-niiui  of  that  portion  of  the  criminal  code  which  defines 
and  punishes  felonies.     See  li.  S.  1S7<!,  p.  44;'). 

The  indictment  contains  three  eount.s.  Omittinj;  the  merely 
ft>rnial  parts,  tlu^  first  coutit  charges  ''that  on  the  Tith  day  of  .lulv 
in  the  year  of  our  Lord  oius  thousand  ei^ilit  liiindnMl  and  seventv- 
four,  oiKJ  .laiiKN  J'.  Waujih  and  (Jcorirc  ||.  Wauj^di,  were  then 
and  there  (•liar-^tMl  with  liaviui;  committed  a  felon;,',  to  wit,  hav- 
'm<r  theretofore,  to  wit,  on  the  4th  day  of  .Inly,  in  the  year  1S74, 
at  said  county  (»f  IJooneand  state  aforesaid,  feloniously  attempteci 
to  commit  a  violent  injury  npt»n  the   person  of  one  Elizabeth 


t 


24 


AMERICAN  CKIMINAL  UEPORTS. 


Wangli,  they,  the  said  George  H.  Wangli  and  James  P.  Waugli, 
then  and  tliere  iiaving  a  present  ability  to  commit  said  injury,  l)y 
tlien  and  there   feloniously,  purposely  and  witli  premeditated 
malice,   shooting   at   and    against    the  said   Elizabeth    Waugli. 
with  a  certain  pistol  then  and  there  loaded  with  gunpowder  and 
leaden  shot,  which  the  said  George  11.   Waugli  and  James   I'. 
Waugh  then  and  there  in  tlieir  hands  held,  with  intent,  then  and 
there  and  thereby,  her,  the  said  Elizabeth  Waugli.  feloiuously, 
purposely  and   with   pretneditated   malice  to  kill   and  murder. 
That  afterwards,  to  wit,  ou  the  12th  day  of  September,  in  tlie 
year  of  1874,  the  grand  jury  of  the  county  of  Boone,  and  state  of 
Indiana,  duly  returned  into  open  court  an  indictment  against  the 
said  George  JI.  Waugh  and  James  P.  Waugh,  then  and  thereby 
and  therein  charging  and  representing  them,  the  said  George  II. 
Waugh  and  James  P.  Waugh,  with  the  offense  and  felony  afore- 
said ;  and  said  indictment,  so  returned.  Avas  then  and  there  pend- 
ing and  undisposed  "  (of) ;  "and  the  grajid  jurors  aforesaid  do  say 
that  William  B.  Walls,  on  the  7th  day  of  Xovember.  A.  D.  1875, 
at  the  county  of  Boone,  and  state  of  Indiana,  was  then  and  there 
an  officer  intrusted  with  the  administration  of  justice,  to  wit, 
prosecuting  attorney  within  and  for  the  twentieth  judicial  circuit 
of  Indiana,  duly  elected,  qualified  a!id  acting  as  sjich.     That  as 
such,  it  became  and  was  the  lawful  duty  of  him,  tlic  said  William 
B.  Walls,  on  belialf  of  the  state  of  Indiana,  to  prosecute  the  said 
indictment  so  pending  against  the  said  James  P.  Waugh  ami 
George  II.   Waugh.     That   the  said  AVilliam   B.   Walls,  being 
prosecuting  attorney  as  aforesaitl,  on  the  day  and  year  afor(!said, 
at  said  county  of  lioone  and  state  aforesaid,  did  then  and  thcun? 
mdawfully,  corruptly  and  feloniously   receive,  accept  and  take 
from  said  James  P.  Waugh  an  undue  reward,  to  wit,  the  jiromis- 
sory  note  of  the  said  James  P.  Waugh  and  one  Daniel  I*.  Waugh, 
payable  to  him,  the  saitl  AVilliam  B.  Walls,  and  calling  for  the 
sum  of  twenty-five  dollars,  said  promissory  not(!  being  then  and 
there  of  the  value  of  twenty-live  dollars,  with  the  fchmious  intent 
that  said  undue  reward  should  then  and"  (there)  "  inlliicnce  liis 
behavior  in  otHce,  lis  such  prosecuting  attorney,  in  the  prosecu- 
tion of  the  offense  and  felony  iifuri'said.'' 

The  second  count  of  the  indictment  was  substantially  the  same 
as  the  first,  except  that  the  pnunissory  note  charg('(l  to  have  boon 
received  by  the  said  Avails,  of  the  said  .lames  I'.  Waugli  and  tho 
said  Daniel  P.  Waugh,  was  alleged  to  be  for  the  sum  of  ono 


hundred 
and  twen 

There  1 
third  com 
charged  ii 

The  CO 
second  C( 
reserved  i 
count,  am 

The  sta 
it  applies 

"If  air 

*    *     *  ' 

to  ijifluen( 

charge  of 

on  convict 

thousand  ( 

determine( 

hold  any  o 

miriate  pei 

It  is  insj 

are  both 

it  is  not  c 

to  have  be 

tion  and 

Seconc 

them,  to 

reward. 

We  thii 
ment  cha 
language 
sufficient, 
there  cit( 

It  is 
tent  with 
tion  shall 
intrusted 
doubtless, 
general  a 
In  our 
gift,  prop 


tec 


a" 


STATE  V.  WALLS. 


m 


hundred  and  twenty-five  dollars,  and  the  value  of  one  hundred 
and  twenty-five  dollars. 

There  Iieing  no  question  before  us  arising  out  of  or  upon  the 
third  count,  it  is  unnecessary  that  we  shall  repeat  here  what  was 
charged  in  it. 

The  court,  on  the  defendant's  motion,  quashed  the  first  and 
second  counts  of  the  indictment.  The  prosecuting  attorney 
reserved  exceptions  and  then  entered  a  nolle  prosequi  to  the  third 
count,  and  prayed  and  obtained  an  appeal  to  this  court. 

The  statute  under  which  this  indictment  was  found,  so  far  as 
it  applies  to  the  case  before  us,  may  be  read  as  follows : 

"  If  any  officer  intrusted  with  the  administration  of  justice 
*  *  *  shall  take  any  money,  gift,  property  or  undue  reward, 
to  influence  his  behavior,  *  *  *  or  action  in  office  or  dis- 
charge of  official  duty,  *  *  *  guch  officer  *  *  *  shall, 
on  conviction  thereof,  bo  fined  in  any  sura  not  exceeding  ten 
thousand  dolhirs  and  be  imprisoned  in  the  state  prison  for  any 
determined  period,  not  exceeding  ten  years,  atul  bo  ineligible  to 
hold  any  office  of  trust  or  profit,  and  disfranchised  for  any  deter- 
minate period." 

It  is  insisted  that  the  first  aad  second  counts  of  the  indictment 
are  both  defective  in  two  essential  particulars  :  First.  Because 
it  is  not  charged  in  either  of  them  that  the  undue  reward  alleged 
to  have  been  taken  by  the  appellee  was  to  prevent  the  prosecu- 
tion and  conviction  of  the  said  James  P.  Waiigh. 

Second,  liecause  nothing  of  value  is  alleged,  by  either  of 
them,  to  have  been  taken  or  accepted  by  the  appellee  as  an  undue 
reward. 

"We  think  the  first  objection  is  not  well  taken.  The  indict- 
ment charges  the  ofTenso  in  substantial  accordance  with  the 
language  used  in  the  statute  in  delining  it.  That,  as  a  rule,  is 
Bufticient.  See  Odell  v.  The  Slate,  3-i  Ind.,  54^ ;  and  authorities 
there  cited. 

It  is  against  good  morals,  against  public  policy  and  inconsis- 
tent witii  the  public  safety  tliat  any  merely  mercenary  considera- 
tion shall  be  allowed  to  iuHnence  the  official  conduct  of  any  officer 
intnisted  with  the  administration  of  justice,  and  hence  it  was, 
doubtless,  that  tlu;  statuio  wc  have  above  quoted  was  made  so 
general  and  so  comprehensive  in  its  terms. 

In  our  judgment,  the  acceptance  by  such  officer  oC  any  money, 
gift,  properly  or  tiiulue  reward,  witl,  the  corrupt  ptirposo  and 


'I. 


m 


A:kIERICAN  CRIMINAL  RP]PORTS. 


intent  that  his  behavior  in  office  or  the  discharge  of  his  official 
duty,  sliall  l)e  influenced  therel)y  in  any  particnilar  cause,  matter 
or  proceediiitr,  constitutes  a  critnc  under  tliis  statute,  and  we 
thinlc  it  unnecessary  to  charge  what  particular  effect  it  was 
intended  such  acceptance  should  have  on  the  officer's  official  (ron- 
dnet.  It  seems  to  us  quite  sufficient  to  chai'ge  that,  in  regard  to 
a  specified  official  duty  he  corruptly  and  feloniously  accepted  an 
undue  reward.  When,  however,  it  was  intended  that  the  undue 
reward  should  bring  about  or  secure  some  particular  illegal  or 
improper  result,  or  when  some  malfeasance  in  office  has  actually 
resulted  therefrom,  we  thinlc  it  better  that  this  intended  result 
or  actual  malfeasance  should  be  charged  in  the  indi(!tment,  so 
that  the  true  character  of  the  offense  nuiy  be  made  more  to 
appear;  but  we  regard  the  question  as  to  what  influence  the 
undue  rewai'd  may  have  had,  or  was  intended  to  have,  or  may 
have  failed  to  have  on  the  official  conduct  of  the  otticcr  as  a  cii-- 
cumstance  to  be  considered,  either  in  aggravation  or  in  mitiga- 
tion of  the  offense,  as  the  case  may  require,  having  reference  to 
all  the  facts  connected  with  it. 

Tlie  second  objection  to  the  counts  of  the  indictment  before 
us  we  regard  as  well  taken,  and  as  fatal  to  these  counts.  To 
make  out  a  case  of  bribery  under  the  statute  governitig  this  pro- 
ceeding, it  must  be  shown  that  the  oflicer  actually  received  some- 
thing of  value.  It  is  not  enough  to  charge  that  somethijig  of 
value  was  ))ronn'8ed  to  be  j)aid  or  promised  to  be  given  to  him. 
Such  a  pronn'so  could  not  be  enforced,  and  hence  can  not  b((  con- 
sidered as  having  any  real  value. 

A  note  executed  to  a  publi(!  officer  to  improperly  influence  his 
official  conduct  is  :.ot  only  without  a  valid  consideration,  but  is 
against  public  policy,  and  hence  utterly  void. 

For  this  reason,  the  notes  aiiegi'd  to  have  been  executed  by  the 
said  James  1*.  Waugli  and  Daniel  I*.  Waugh  to  the  appellee,  to 
influence  his  behavior  in  oflice,  as  they  are  desc-ribed  in  the 
indictment,  must  bo  held  to  be  void  and  of  no  vahu!,  and  not  to 
have  constituted  an  undue  reward  within  the  meaning  of  tiie 
statute. 

However  reprehensible  the  alleged  (M»nduct  of  the  appellee 
may  be  considered,  as  a  breach  of  ofllciiil  and  professional  (hity, 
we  are  of  the  opinion  that  the  court  biilow  did  not  err  in  (pui^h- 
ing  the  flrst  and  second  counts  of  the  indictment  against  hini. 
The  judgment  is  iillirmed. 


STATE  V.  WARD. 


m 


Note. — That  a  note,  given  to  secure  the  suppression  or  discontinuance  of  a 
criminal  prosecution  is  void,  sec  Smith  v.  Rkhnr(U,  3!)  Conn.,  2:52;  Brown  v, 
I'iUlgctt,  ;!r»(:Jeo.,  »!()!);  Sinmv.  Ghaiidkr,  8  B.  Mon.  (Ky.),  !)7;  Com.  v.  John- 
Mil,  ;j  Cusli.  (Mass.),  ,5;!4;  Muriihy  r.  /iofomi'i;  -10  Mo.,  07;  Plnmur  v.  Smith, 
.")  N.  II.,  ')',•.);  Porter  v.  JIur,;,.\  ;J7  Barl».,  ;i4:i;  lioiren  v.  Tinrk,  28  Vt.,  :i08. 
But  this  rule  does  not  apply  in  cases  of  misdemeanor,  where  the  party  has  a 
remedy  by  civil  action,  as  in  c.iscfs  of  as.sault  and  battery,  and  the  like: 
Mathimn  v.  llauks,  2  Hill  (S.  C),  ((2.');  or  in  bastardy  cases:  Barr/eu  v.  Stnivg- 
h<tn,  7  .1.  J.  Marsh.  (Ky.),  58:1;  Hans  v.  McFarhin,  82  Geo.,  01)9;  Wearer  e. 
Waterman,  18  La.  Ann.,  241;  llotee  v.  LitrhfieUl,  ',\  Allen  (.Mass.),  44:j;  Rice  v. 
Maxwell,  21  Jliss.  (13  Smed.  and  M.),  289;  Stephens  v.  Spiers,  25  Mo.,  386; 
Sharp  r. ,  9  N.  J.  L.,  352;  Payne  t.  Eden,  3  Caines  R.,  212;  Max- 
well V.  Vampliell,  8  Ohio  St.,  205;  Wright  v.  Priest,  2  Vt.,  507;  JMinson  v. 
Crenshaw,  2  Stew,  and  P.  (Ala.),  270.  Generally,  it  may  be  said  that  notes 
given  to  secure  one's  influence  in  any  form,  for  the  purpose  of  influencing 
any  ofllcer  or  body  intrusted  with  a  public  duty,  are  void.  See  Buck  v. 
Hunk,  27  j\Iich.,  293;  Pingr;/  v.  Washburn,  1  Aiken,  264;  Clipping  v.  Ifep- 
txiugh,  5  \V.  and  S.,  315;  llatzjield  v.  Gulden,  7  Watts,  152;  Fuller  v.  Dawe, 
18  Pick.,  472;  Wmjd  v.  McCan'n,  C  Dana,  300;  Marshall  v.  B.  «fc  0.  R.  R.  Co., 
16  How.,  314;  Sedgwick  v.  Stanton,  14  N.  Y.,  289;  Frankfort  v.  Winterport,  64 
Me.,  250;  Martin  v.  Wade,  37  Cal.,  108.  ^ 


State  v.  Ward. 
•    (43  Conn.,  489.) 


BUUOI.AUV. 

A  person,  in  the  night  season,  entered  a  dwelling-house,  without  breaking, 
for  the  purpose  of  committing  a  felony,  but  broke  out  in  making  his 
escape.     Held  to  be  burglary. 

Information  for  biirjijliiry  ;  brought  to  the  Superior  Court  in 
Hartford  county,  and  tried  to  the  jury,  on  the  plea  of  not  guilty, 
before  Paudke,  J. 

On  tlie  trial  the  attorney  for  the  state  offered  evidence  to  prove 
and  claimed  to  have  proved,  that  the  defendant  entered  the 
house  of  one  (Jatitz,  in  the  night  season,  through  a  window  in 
the  second  story  of  the  house,  about  lit'tcen  feet  From  the  groiuid, 
which  window  wa.s  raised  about  si.\  inches  and  sup|)orte(l  in  this 
position  by  an  (ul  can,  with  intent  to  steal  the  goods  of  one 
Davis,  then  in  the  room ;  aiul  that  he  unlocked  the  door  of 
Davis's  room  and  the  outer  door  of  the  house  for  the  purpose  of 
lualviiig  his  escap(^  therei'rom. 

Tiie  attorney  askcMl  tiu!  (!ourt  to  charge  the  jury,  as  matter  of 
law,  that,  if  they  found  the  above  facts  to  bo  proved  beyond  a 


■  ri= 


i  ;3-' 


i 


I 


f'li 


(.T'Tii 


28 


AMERICAN  CKIMIXAL  KEPOUTS. 


4^ 


reasonable  doubt,  they  would  support  a  verdict  of  ^Miilty  upon 
the  charge  contained  in  the  information ;  and  the  court  so 
charged. 

The  jury  having  returned  a  verdict  of  guilty,  the  prisoner 
in()''ed  i'         w'v  trial  for  error  in  the  charge  of  the  court. 

A.  J''.    :  "'cf<    ?,  in  6U]>port  of  the  motion  : 

1.  I  no  breaking  out  of  the  house  was  not  felony  at  common 
law.  ?■'  Matthew  JIale  says  iu  his  Pleas  of  the  Crown,  p.  554. 
"If  a  man  cr.  ^v,  i;  -  i.c  night  time,  by  the  doors  open,  with  the 
intent  to  steal,  and  >  piD'S'ijd,  whereby  he  opens  another  door 
to  make  his  escape,  this  1  think  is  not  burglary,  for  jWfft'f  ct 
exivit,  non  frcg'it  et  intraviV  And  Coke  says  a  burglar  is  "  he 
that  by  night  hreaketh  and  enterelh  into  a  mansion  house  with 
intent  to  commit  a  felony." 

2.  But  the  attorney  for  the  state  relies  upon  the  English 
statute  of  12  Anne,  as  having  become  a  part  of  the  coniinon  law 
of  this  state.  That  statute  provides  that  "  if  any  j)erson  shall  enter 
into  the  dwelling-house  of  another  by  day  or  by  night,  without 
breaking  the  same,  with  an  intent  to  commit  felony,  or,  being  in 
such  house,  shall  commit  any  felony,  and  shall,  in  the  night  time, 
break  the  said  house  to  get  out  of  the  same,  such  person  is,  and 
shall  be,  adjudged  and  taken  to  be  guilty  of  l)urglary."  The 
preamble  to  that  act  is  as  follows:  "Whereas  tiiere  has  been 
some  doubt  whether  the  entering  into  the  mansion  house  of 
another,  without  breaking  the  same,  with  an  intent  to  couiniit 
some  felony,  and  breaking  the  said  house  in  the  nigiit  time  to 
get  out,  be  burglary,  be  it  declared  and  enacted,  etc."  'J'liis  act 
was  passed  after  Sir  Matthew  Hale  had  expressed  the  o])iiiion  we 
have  (pioted,  and  in  view  of  the  prevailing  opinion  to  the  same 
effect  as  to  the  common  law  upon  the  point  in  (pustion,  and 
must  be  regarded  as  an  original  enactment  setting  aside  the  com- 
mon law  and  not  declaratory  of  it. 

3.  This  statute  has  never  become  a  part  of  the  common  law 
of  this  state.  No  authority  holds  that  an  English  statute,  passt-il 
subseq\iently  to  the  emigration  of  our  ancestors,  constitutes  a 
part  of  the  common  law  of  this  country.  It  must  have  passed 
before:  1  Kent  Com.,  473.  The  colony  of  Connecticnt  dates 
from  1635.  It  received  its  charter  in  Wm.  The  statute  VI 
Anne  was  enacted  in  1713.  At  the  head  of  the  statute  book  of 
the  colony  of  Connecticut,  from  1650  to  1784,  appears  the  fol- 
lowing significant  law :     "  Be  it  enacted  by  the  governor,  council 


and  represe 
shall  be  ta 
stained,  no 
be  by  virtu 
ranting  the 
published ; 
lar  case,  by 
God."    th 
by  sixty-thr 
has  never  h 
any  Englisli 
existence  as 
Xew  York 
the  discussi( 
the  commoi 
all  the  courl 
and  since  ti 
our  situatioi 
as  one  entir 
Com.,  472. 
has  deemed 
the  statute  ( 
its  being  a 
assumed,  in 
12  Anne  as 
statutes  by 
statutes,  not 
Itecomo  so 
"iistinguisha 
lirainard^ 
W.  Ham 
1.     The 
1  Russell  or 
The  whole  i 
breaking  oi 
not  an  offeti 
The  attomj 
nmson  of  tl 
night.     Th( 
breaking  at 
felonious  in 


STATE  V.  WARD. 


29 


and  representatives  in  general  court  assembled,  that  no  man's  life 
shall  be  taken  away,  no  man's  honor  or  good  name  shall  be 
stained,  no  man's  person  shall  be  arrested,  *  *  *  unless  it 
be  by  virtue  or  equity  of  some  express  law  of  this  colony,  war- 
ranting the  same,  established  by  the  general  court,  and  sufficiently 
published ;  or  in  case  of  the  defect  of  such  law,  in  any  particu- 
lar case,  by  some  clear  and  plain  rule  warranted  by  tlie  word  of 
God."  "this  colonial  enactment  precedes  the  statute  of  12  Anne 
by  sixty-three  years.  But  the  common  law  of  England,  as  such, 
lias  never  had  any  force  in  the  state  of  Connecticut,  much  less 
any  English  j^ewaZ  statute,  enacted  seventy-eight  years  after  our 
existence  as  a  colony  :  Fitch  v.  Brainard,  2  Day,  189.  The 
Xew  York  and  Massachusetts  decisions  are  of  no  assistance  in 
the  discussion  of  this  matter,  because  in  the  Massachusetts  colony 
the  common  law  of  England  was  accepted  and  put  in  practice  in 
all  the  courts  in  that  province  by  special  commission  of  the  king, 
and  since  then  the  English  common  law,  so  far  as  applicable  to 
our  situation  and  government,  has  been  recognized  and  adopted 
as  one  entire  system  by  the  constitutions  of  those  states :  1  Kent 
Com.,  472.  Notwithstanding  all  this,  the  state  of  New  York 
has  deemed  it  prudent  to  place  upon  its  statute  book  substantially 
the  statute  of  12  Anne,  apparently  "  being  in  some  doubt "  as  to 
its  being  a  part  of  their  common  law.  Connecticut  has  never 
assumed,  in  its  courts  of  justice,  or  declared  by  statute,  the 
12  Anne  as  the  law  of  this  state.  The  only  adoption  of  English 
statutes  by  the  courts  of  this  state  has  been  that  of  ancient 
statutes,  not  penal,  whose  corrective  and  equitable  principles  had 
become  so  interwoven  with  the  common  law  as  to  be  scarcely 
distinguishable  therefrom:  Strom/ s  Case,  Kirby,  345;  Fitch  v. 
lirainard,  2  T)&y,lS\). 

W.  Hamersley,  state's  attorney,  contra : 

1.  The  statute  12  Anne  is  declaratory  of  the  common  law: 
1  Russell  on  Crimes,  702.  It  is  so  expressed  by  the  act  itself. 
The  whole  reason  of  the  thing  is  in  favor  of  the  view  that  makes  a 
brcuking  out  burglary  as  much  as  a  breaking  in.  Uurglary  is 
not  ail  offense  against  property.  It  is  an  offense  against  security. 
The  attempt  to  commit  a  felony  becomes  an  actual  felony  by 
reason  <»f  the  violation  of  the  security  of  the  dwellii  "x-lmuse  by 
night.  The  security  of  tlio  house  is  just  ns  much  viohitcd  by  a 
breaking  at  the  time  of  the  exit  as  at  the  tiiiie  of  the  entry.  The 
felonious  intent  accompanies  the  burglar  throughout  his  attempt 


'•! 


:l 


<\  ■ ! 
M  ■ 


m 


AMERICAN  CRIMINAL  REPORTS. 


Tlie  nttempt  is  oi»e  act  from  the  entry  to  the  exit.  It  is  imma- 
terial at  wliat  sta«.-e  of  the  act  the  violence  is  committed,  whether 
at  the  entry,  after  the  entry  anil  before  the  exit,  or  at  the  exit. 
Or  rather,  "the  attempt  being  one  act,  it  is  not  divisible  for  any 
such  purpose ;  a  breaking  during  the  attem])t  atfeets  the  whole 
act.  This  view  of  the  law  of  burglary  has  been  adoi)led  by  the 
American  text-books  without  exception,  and  lias  not  been  (pies- 
tioned  in  any  reported  decision  :  2  Swift  Dig.,  331 ;  2  Bennett 
and  Heard's  Lead.  Cas.,  62 ;  2  Bishop  Crim.  Law.  ^^  S+,  8(J ;  3 
Greenl.  Ev.,  §  76  ;  Sand's  Case,  6  Roger's  City  Hall  liecorder,  1. 
2.  The  common  law  of  England,  so  far  as  the  same  was  con- 
sistent with  the  local  circumstances  of  the  colony,  was  the  com- 
mon law  of  Connecticut  at  the  time  of  its  settlement,  and  so 
remains  unless  altered  by  legislation.  All  English  statutes  modi- 
fying this  common  law,  passed  prior  to  our  settlement,  were 
operative  here  as  a  part  of  our  common  law :  1  Bisho])  Crim. 
Law,  §13;  Commonwealth  v.  Leach,  1  Mas.'*.,  61.  English 
statutes  pa.ssed  since  the  settlement  of  the  colony  and  before  the 
revolution,  modifying  the  common  law  then  prevailing  in  the 
colony,  may  also  be  operative  no.v  as  part  of  our  common  law. 
Their  operation  depends  upon  the  (piestion  whether  they  were 
adopted  or  acquiesced  in  during  the  colonial  stage :  1  Bishop 
Crim.  Law,  §  13.  For  such  adoption  no  legislative  action  is 
required.  And  it  is  not  necessary  to  show  affirmatively  that  the 
rule  has  been  received  in  some  judicial  ))rocee(iing:  Common- 
wealth V.  Chapman,  13  Met.,  72.  A  beneficial  statute,  in  amend- 
ment of  the  common  law,  may  be  presumed  to  have  been 
adopted  here:  SacTcett  v.  Sackett,  8  Pick.,  316;  liotjnton  v. 
Jiees,  9  Id.,  531 ;  Commonwealth  v.  Chairman,  13  Met.,  73.  In 
Connecticut  the  inhabitants,  by  virtue  of  the  charter  of  Charles 
II.,  w^ere  entitled  to  the  liberties  and  immunities  of  English  sub- 
jects the  same  as  if  born  in  England,  and  the  colonial  legislature 
was  forbidden  to  enact  laws  contrary  to  the  laws  and  statutes  of 
England.  Our  courts  have  held  that  a  statute  of  .vime,  in 
amendiiu'ut  of  the  common  law.  <jiialities  that  law  as  cxisring  in 
Connecticut,  though  no  case  arose  under  the  statute  uiit i  after 
the  revolution :     StfoiKjs  Caw,  Kirby,  34.'!. 

FosTKu,  J.  Upon  the  trial  of  this  case  to  the  jury,  tlie  public 
prosecutor  ofTercd  evidence  to  prove,  and  claimed  that  it  did 
prove,  that  the  defendant  entered  the  liouse  of  one  (Jantz  in  the 


STATE  V.  WARD, 


Of 


Tiitflit  season,  tliroii^h  a  window  in  tlie  second  story,  about  fifteen 
foet  from  tlie  <fround,  which  window  was  raised  about  six  inches 
and  supported  in  this  position  by  an  oil  can,  with  an  intent  to 
fiteal  the  goods  of  one  Davis  then  in  the  room,  and  tliat  he 
unldcked  the  door  of  Davis'  room  and  tlie  outer  door  of  the 
house,  for  tlie  purpose  of  niaking  his  escape  therefrom.  The 
attorney  for  the  state  asked  the  court  to  charge  the  jury  as 
matter  of  law,  that  if  they  found  the  above  facts  proved  beyond 
a  reasonable  doubt,  they  would  support  a  verdict  of  guilty  of 
the  charge  contained  in  the  information.  The  court  so  instructed 
the  jury,  and  they  returned  a  verdict  of  guilty.  The  motion  for 
a  new  trial  raises  the  question,  was  this  instruction  correct? 

We  think  it  was.  If  eacli  and  every  of  the  acts  constituting  a 
eriine  are  committed,  and  all  the  evils  consequent  on  the  crime 
are  produced,  tlie  precise  order  in  which  the  acts  are  done  cannot 
be  material.  Now,  burglary  is  the  breaking  and  entering  the 
house  of  another  in  the  niglit  season,  with  an  intent  to  commit  a 
felony.  The  jury  have  found  that,  coupled  with  the  guilty 
intent,  the  accused  committed  every  act  going  to  make  np  this 


crime, 


The  accused  stood  not  on  the  doing  of  these  acts,  nor  on  the 
order  of  doing  them,  except  so  far  forth  as  was  convenient  and 
necessary  to  accomplish  his  guilty  purpose.  That  this  offense  is 
burglary  we  can  have  no  doubt. 

It  is  true  that  doubts  have  been  expressed  whether  a  breaking, 
for  the  purpose  of  escape,  constituted  burglary.  Lord  Hale  and 
Cliiet'  .Justice  Trevor  expressed  such  doubts  on  the  trial  of  Eliza- 
beth Clark,  at  the  Old  liailey,  in  1707. 

The  offense  was  punishable  with  death,  and  it  was  creditable 
to  the  hearts  of  judges  to  make  fine  distinctions  and  insist  on 
technicalities  in  favor  of  human  life,  especially  when  the  offender 
was  a  woman.  The  law,  however,  was  then  generally  consid- 
ered well  settled,  and  so  the  statute  of  12  Anne  was  soon  after 
j)as8ed  as  a  declaratory  act.  After  stating  the  law  to  have  been 
doubted,  it  was  "declared  and  enacted,  that  if  any  persons  shall 
enter  into  the  mansion  or  dwelling-house  of  another,  by  day  or 
by  uight,  without  breaking  tlie  same,  witli  an  intent  to  commit 
felony;  or,  being  in  such  house,  shall  commit  any  felony,  and 
shall,  in  the  night  time,  lireak  the  said  house  to  get  out  of  the 
same,  such  person  is  and  sliall  be  adjudged  to  be  guilty  of  bur- 
glary, and  shall  be  ousted  of  the  benefit  of  clergy  in  the  same 


:■ 


I 


il 

If:      I  |:' 

^5:  i ' 

t.     ! 


82 


AMERICAN  CRIMINAL  REPORTS. 


manner  as  if  such  person  liad  broke  and  entered  tlie  said  house 
in  the  night  time,  witli  an  intent  to  commit  burglary  there  :'* 
Stat.  12  Anne,  c.  7. 

We  incline  to  the  opinion  that  the  facts  found  to  have  been 
committed  by  the  accused  constituted  the  crime  of  burglary,  at 
common  law,  and  that  the  statute  of  Anne,  above  quoted,  should 
be  regarded  simply  as  declaratory  of  that  law. 

If  the  statute  be  viewed  in  another  aspect,  as  in  alteration  and 
amendment  of  the  common  law,  it  may  still,  perhaps,  be  consid- 
ered a  part  of  our  law  by  adoption,  though  not  of  binding  force 
as  a  statute.  Statutes  of  this  character,  passed  by  parliament 
before  our  declaration  of  independence,  have  been  adopted  by 
our  sister  states  as  part  of  their  common  law :  Commonwealth 
V.  Leach,  1  Mass.,  50 ;  Commonwealth  v.  Knoiolton,  2  Mass., 
534;  Pemhle  v.  Clifford,  2  McCord,  31;  Saclcett  v.  Sachtt,  8 
Pick.,  309 ;  Boynton  v.  liees,  9  Pick.,  528;  Commonwealth  v. 
Chapman,  13  Met.,  68.  In  this  state,  in  1787,  our  superior 
court  recognized  and  adopted  the  statute  of  9  Anne,  altering  and 
amending  the  common  law  relating  to  writs  of  mandamus: 
Strong's  Case,  Kirby,  345. 

We  are  satisfied  w^ith  the  charge  of  the  court,  and  advise  no 
new  trial. 

In  this  opinion  the  other  judges  concurred,  except  Pardee,  J., 
who,  having  tried  the  case  in  the  court  below,  did  not  sit. 

Note.— "Where  the  defendant  entered  a  dwelling  at  night  without  break- 
ing, but  with  felonious  intent,  the  mure  unlatehing  or  breaking  of  a  door,  in 
an  attempt  to  escape,  does  not  make  the  oirense  burglary: "  Holland  v.  flom., 
82  Pa.  St.,  306.    And  to  the  same  effect  is  White  v.  State,  51  Ga.,  885. 


Ratkkin  v.  State. 

(20  Ohio  St.,  420.) 

Statutory  svnaLAUY.—lobacco  house. 

A  building  on  a  farm,  built  and  used  for  the  purpose  of  storing  and  drying 
tobacco,  but  occasionally  used  for  storing  flax  and  hay,  is  a  barn,  and 
within  the  Ohio  statute  against  burglary. 

By  the  court.  The  plaintiil  in  error  was  convicted  and  sen- 
tenced for  burglary.  The  count  of  the  indictment  on  which  he 
was  convicted  described  the  building  alleged  to  be  the  subject  of 
the  burglary  as  a  "barn."    On  the  trial,  the  evidence  showed 


STATE  V.  CROWLEY. 


33 


that  the  build iiifij  l)roken  and  entered  was  wliat  is  commonlj 
called  a  "  tobacco  house."  It  wjis  a  building  erected  upon  the 
farm,  and  designed  and  used  mainly  for  the  purpose  of  storing 
and  di'viiig  tobacco,  but  occasionally  used  also  for  the  purpose  of 
storing  liny  and  flax.  The  question  presented  is,  whether  the 
court  below  erred  in  holding,  as  it  did,  that  such  a  building 
might  l)c  the  sul)ject  of  burglary  under  the  statute  defining  that 
crime,  and  whether  it  was  ])roperly  described  in  said  count  of  the 
indictment.  We  answer  both  questions  in  the  afKnnative.  We 
think  the  buihling  in  question  was  a  "barn"  within  the  intent 
and  meaning  of  the  statute,  and  was  properly  described  in  the 
indic^tment  by  that  name.  The  fact  that  it  was  used  for  the  pur- 
pose of  storing  products  of  the  farm,  we  think,  entitles  it  to  that 
statutory  designation. 
Motion  overruled. 


State  v.  Ceowlet. 

(41  Wis.,  271.) 

CBmiKAi/   law:    Conspimey  —  Form   of  indictment — Compiraey  to  obtain 
money  under  falxe  prctimfCK — Enncntial  conditions  of  the  crime. 

In  an  indictment  or  information  for  ii  conspiracy  to  do  a  lawful  act  by  crim- 
inal means,  tlie  means  must  be  particularly  set  forth.  But  if  the  con- 
spiracy be  to  do  an  act  in  itself  unlawful  (whether  at  common  law  or  by 
statute),  the  means  by  which  it  was  to  be  accomplished  need  not  be 
stated. 

Thus,  where  the  object  of  the  conspiracy,  as  charged,  was  to  obtain  money 
from  a  ((Mtain  person  "by  false  pretenses,  and  by  false  and  privy  tokens 
and  subtle  means  and  devices,"  it  was  not  necessary  to  state  more  specifi- 
cally such  pretenses,  tokens  or  devices;  the  obtaining  money  on  false  pre- 
tenses being  a  crime  l)y  statute. 

In  such  a  prosecution,  if  it  appears  that  the  transaction  on  the  ptirt  of  the  per- 
son from  whom  the  money  was  oljtained,  or  from  whom  defendants  con- 
spired to  obtain  it,  Wduld  have  been  mrinrfid  in  .  ase  t lie  representations 
of  the  defcnilaiits  liad  hceii  tnii,  tiiere  can  be  no  conviction. 

Thus,  where  nu y  was  jiaid  liy  A  to  certain  conspirators  to  get  possession  of 

lioxes.  falsely  icprcsented  by  the  latter  to  contain  counterfeit  money,  with 
a  view  to  utteiing  the  same,  and  a  furtliiT  sum  was  jiaid  to  one  of  the 
confederates,  who  was  a  constable,  to  i)revent  a  threatened  arrest  of  A 
for  having  sueli  counterfeit  money  in  i)()ssession  (the  boxes  in  fact  con- 
taining (inly  saw-dust),  the  confederates  cannot  be  convicted,  upon  these, 
facts  of  a  conspiracy  to  obtain  money  of  A  upon  false  pretenses. 
Voi,.  II.— a 


Pf 


1'-^ 


!i 


|g  AMERICAN  CRIMIXAL  REPORTS 

Reportod  from  tlie  circuit  court  for  Muuroe  county. 

The  defentlautri  were  tried  and  convicted  upon  an  infor?nati<m 
charging  tliem  with  a  criminal  conspiracy.  The  circuit  court 
suspended  judgment,  and  reported  the  case  to  this  court  pursu- 
ant to  the  statute  (R.  S.,  ch.  180,  sec.  8)  for  tlie  determination  of 
the  following  questions  of  law  : 

1.  Does  the  tirst  count  of  the  information  on  which  the 
defendants  were  tried,  charge  a  criminal  offense  ? 

2.  Does  the  evidence  in  the  case  support  the  charge  of  con- 
spiracy as  contained  in  said  first  count? 

It  is  charged  in  said  tirst  count  of  the  information,  that,  on  the- 
day  and  at  the  place  therein  specified,  the  defendants,  "  wickedly 
and  unjustly  devising  and  intending  one  Daniel  Burke  to 
defraud  and  cheat  of  his  money  and  property,  did  then  and  there 
unlawfully,  falsely  and  fraudulently  conspire,  coniljine,  confeder- 
ate and  agree  together  and  among  themselves,  to  get  and  obtain, 
knowingly  and  designedly,  by  false  pretenses  and  by  false  and 
pr'ry  tokens  and  subtle  means  and  devices,  of  him  the  said 
Daniel  Burke,  one  hundred  and  ten  dollars  in  money,  the  money 
and  property  of  him  the  said  Daniel  Burke,  of  the  value  of  one 
hundred  and  ten  dollars,  with  the  intent  then  and  there  to  cheat 
and  defraud  him  the  said  Daniel  Burke  of  the  said  moyey, 
against  the  peace  and  dignity  of  the  state  of  Wisconsin." 

The  testimony  on  the  trial  to  which  the  second  question  relates 
is  substantially  as  follows :  The  defendant  G.  Crowley  solicited 
Daniel  Burke  to  pay  him  fifteen  dollars  for  one  hundred  and 
fifty  dollars  of  counterfeit  money.  Burke  agreed  to  purchase 
the  same,  and  paid  Crowley  the  fifteen  dollars  therefor.  Tlie 
latter  inclosed  the  money  in  a  letter  to  sonje  person  (who,  the 
prosecution  claims,  is  the  defendant  James  Crowley\  and  sent 
the  letter  by  mail.  This  occurred  at  S])arta,  Wis.  After  some 
days,  Burke  received  a  letter  mailed  at  Lake  City,  Minnesota, 
and  signed  "  C.  O'Donnell,"  acknowledging  the  receipt  of  the 
fifteen  dollars  and  promising  to  forward  '■'' the  goods''''  in  a  few 
days.  About  a  month  later,  Burke  received  another  letter  simi- 
larly signed,  and  mailed  at  Jefferson,  Wis.,  informing  him  that 
the  writer  had  sent  him  by  express  to  Dover  (a  railway  station 
near  Sparta),  a  box  marked  "Condition  Powders,"  containing 
"  $1,000  of  various  denominations,  with  full  directions  how  to 
pass  it,  in  print,"  and  requiring  Burke  to  pay  the  express  agent 
twenty  dollars,  and  to  remit  the  balance,  $65,  as  soon  as  he  could. 


STATE  V.  CROWLEY 


35 


Bnrke  thereupon  M'cnt  to  Dover,  found  the  box  there,  paid  the 
agent  tlie  charges  and  $20,  took  tlie  box  home,  opened  it,  and 
found  that  it  contained  nothing  but  grass  and  a  cigar  box.  He 
informed  0.  Crowley  of  tlie  contents  of  the  box,  and  the  latter 
promised  to  make  it  all  right,  and  to  write  "the  company 
about  it." 

A  week  or  two  later,  Burke  received  another  letter,  mailed  at 
Oconomowoc,  and  signed  as  were  the  others,  "  C.  O'Donnell,"  in 
which  the  writer  indulges  in  some  doubts  as  to  the  truthf  iilness 
of  Burke's  story,  but  informs  him  that  he  has  shipped  $1,000 
more  to  Greenfield  for  him.  This  letter  required  Burke  to  pay 
$25  down,  and  proposed  to  wait  for  the  balance  of  $75,  and  the 
balance  of  $65  due  on  the  first  transaction,  till  lie  should  "realize 
it  out  of  the  business."  Burke  went  to  Greenfield,  paid  the  $25 
and  express  charges,  obtained  the  box,  and  returned  with  it  to 
Sparta.  C  Crowley  met  him  there  at  the  depot,  and  as  they 
were  walking  up  town  together,  having  the  box  with  them,  they 
were  arrested  by  the  defendant  Carnahan,  who  was  a  constable. 
Carnalian  accused  them  of  having  counterfeit  money  in  the  box, 
and  threatened  to  expose  them  and  have  them  punished ;  but, 
after  some  negotiation,  he  agreed  to  settle  the  matter  and  keep 
silent  for  $150.  Burke  agreed  to  pay  $50,  and  C.  Crowley  the 
remaining  $100.  A  few  days  later,  Burke  paid  the  $50  to  Car- 
nahan,  took  the  box  home,  opened  it,  and  found  only  sawdust 
and  scraps  of  paper. 

The  foregoing  are  all  the  facts  essential  to  the  determination 
of  the  second  question  ;  although  it  may  be  stated  as  part  of  the 
history  of  the  case,  that  subsequently,  by  similar  devices,  among 
which  was  another  empty  package  and  another  arrest,  and  in 
which  at  least  one  of  the  Crowleys  participated,  the  confederates 
(whoever  they  were)  succeeded  in  obtaining  from  Burke  two 
hundred  dollars  more. 

Burke  purchased  the  counterfeit  money  for  the  purpose  and 
with  the  intention  of  uttering  and  passing  it  as  good  money.  It 
is  claimed  by  the  prosecution,  and  the  evidence  tends  to  prove 
that  the  letters  were  written  and  the  boxes  forwarded  by  the 
defoiulant  James  Croioley. 

Briefs  were  filed  for  the  defendants,  signed  respectively  by 
Hall  c6  Skinner^  and  by  Cameron,  Losey  &  Bunti ;  and  the 
cause  was  argued  orally  in  their  behalf  by  Charles  W.  Bunn  and 
D.  Hall.    They  argued  substantially  as  follows : 


' 

f^m. 

i^^p 

'k       'i:^f  :■'■'-:'. 

.'■■ 

1 

:    ■'  ■  '■■' 

1 

36 


AMERICAN  CRIMINAL  REPORTS. 


M 


1.  An  information  for  a  conspiracy  to  obtain  money  by  false 
pretenses  must  set  out  the  means  to  be  used  :  Com.  v.  East- 
man, 1  Cnsh.,  189;  Coin.  v.  Shedd,  7  Id.,  514;  Com.  v.  Hunt, 
4  Met.,  \\\\LamheH  v.  People,  9  Cow.,  578;  State  v.  llewetty 
31  Me.,  396 ;  State  v.  Eoberts,  34  Id.,  328 ;  Com.,  v.  Prius,  9 
Gray,  127 ;  Com.  v.  Wallace,  16  Id.,  221 ;  Alderman  v.  The 
People,  i  mch.,  414;  State  v.  Potter,  28  Iowa,  554 ;  aS'^^^^?  v. 
Stevens,  30  Id.,  391 ;  State  v.  Jones,  13  Id.,  269  ;  3farch  v.  The 
People,  7  Barb.,  391;  Ilartmann  v.  The  Com.,  5  Barr,  60. 
2.  The  statute  against  false  pretenses  applies  only  to  legitimate 
trade  and  business  {People  v.  Clough,  17  Wend.,  351),  and  cer- 
tainly was  not  intended  to  protect  criminal  contracts,  or  parties 
engaged  in  criminal  transactions :  People  v.  Stetson,  4  Barb., 
151 ;  People  v.  Williams,  4  Hill,  9 ;  IfcCord  v.  The  People,  4(V 
N.  Y.,  470.  3.  Where  the  exercise  of  common  prudence  and 
caution  would  enable  one  to  avoid  being  imposed  upon  by  the 
false  pretenses,  they  are  not  within  the  statute :  State  v.  Green, 
7  Wis.,  676 ;  State  v.  Simpson,  3  Hawks.,  620  ;  Peoj^le  v.  Will- 
iams, supra ;  People  v.  Crissie,  4  Denio,  525 ;  Com.  v.  Drew., 
19  Pick.,  179 ;  Com.  v.  Norton,  11  Allen,  266.  4.  The  statu- 
tory offense  is  the  use  of  false  pretenses  "  with  intent  to  defraud." 
Burke  was  not  defrauded,  but  greatly  benefited,  by  getting  what 
he  actually  got  instead  of  what  he  expected.  5.  A  false  j)re- 
tense  under  the  statute  must  relate  to  a  past  event  or  existing 
fact;  while  here  there  was  merely  a  promise  to  do  a  future  crimi- 
nal act,  and  a  breach  of  that  promise :  Regina  v  Goodhall,  II. 
&  R,  461 ;  Rt'x  v.  Oates,  29  Eng.  L.  &  E.,  552  ;  Dillingham  v. 
The  State,  5  Ohio  St.,  280 ;  Com.  v.  Burdick,  2  Burr,  163  j 
Com.  V.  Dreio,  siipra. 

The  Attorney-General  and  ./.  21.  Morrow,  district  attorney  of 
Monroe  county,  for  the  state  : 

1.  The  obtaining  of  money  or  goods  under  false  pretenses  is 
a  crime  (R.  S.,  ch.  165,  sec.  38);  a  combination  or  conredenicy 
to  ooiiiinit  such  crime  is  also  a  crime,  though  nothing  bo  done  in 
prosecution  of  it,  the  offense  being  complete  when  the  (!onl'ed- 
eracy  is  mmle  (2  Arch.  Cr.  Pr.,  9tli  ed.,  10 If),  and  ciiscs  tlii-ro 
cited;  2  Bishops  Cr.  L,  title  "  CVoispinicy ;"  3  (inrnl.  Ev., 
llcdiield's  ed.,  title  "  Coiispinicy,"  §89,  etc.;  3  Wiiart.  Cr.  L., 
6th  ed.,  §22!>1,  etc.),  and  it  was  not  necessary  to  state;  in  the 
inforiui.tion  the  meiois  which  were  to  bo  used  :  2  Bish.  Cr. 
Prac,  i,17,   218;  1  Id.,  516;  2  Arch.  Cr.  Pr.,  1040,  note;  3 


Whart.  C 
Prec,  33^ 
30  Id.,  1 
7  Serg.  a: 
Id.,  253 ; 
V.  Richat 
310;  Joh 
ch.  137,  s( 

2.    Th( 
spiracy. 
Bui'ke ;  tl 
arrest. 

The  CO 
are  not  t 
doctrines 
be  calcula 
a  thing,  c 
itself  ma;) 
deceive : 
Young  ■». 

Lyon,  J 
defendant 
fails  to  s 
employ  f( 
Their  pos: 
defendant 
■out  in  the 

Were  t 
false  protc 
it  to  bo  w 
tenses  rest 
set  out  \ 
thereof  in 
ch.  165,  8c 
7  Wis.,  61 

But  the 
between  fi 
false  protc 
case  the  t 
former.     ' 


STATE  V.  CROWLEY. 


37 


Whart.  Cr.  L.,  §§  2293,  2295 ;  3  Cliitty's  Cr.  L.,  1143  ;  Whait. 
Free,  334-351 ;  State  v.  Blpli'U,  31  Me.,  386 ;  State  v.  Bartlett, 
30  Id.,  132;  State  v.  Noys,  25  Vt.,  415;  Com.  v.  Gillespie, 
7  Ser<^.  and  R.,  469 ;  Ilazen  v.  The  Com.,  11  Harris,  365  ;  10 
Id.,  253 ;  State  v.  Buchanan,  5  Harris  and  Jolin.s.,  317 ;  People 
V.  liltthanls,  1  Mann.  (Mich.).  217;  People  v.  ClaA;  10  M'mli., 
310;  Johnson  V.  People,  22  Hi.,  314.  See,  also,  laws  of  1871, 
c'li.  137,  sec.  2. 

2.  The  evidence  in  this  case  supports  the  charge  of  con- 
spiracy. The  object  of  this  conspiracy  was  to  obtain  money  of 
Burke ;  the  means  used  were  certain  false  pretenses  and  pretended 
arrest. 

The  conspiracy  is  the  gist  of  the  offense ;  the  means  used 
are  not  the  crime,  but  only  evidence  of  the  critne.  And  the 
doctrines  applied  by  the  court  to  false  pretenses,  that  they  must 
be  calculated  to  deceive,  and  must  not  be  a  mere  promise  to  do 
a  thing,  do  not  apply  to  conspiracies,  because  the  conibination 
itself  may  make  any  pretense  formidable  and  give  it  power  to 
deceive :  7  Serg.  and  R.,  469 ;  Queen  v.  Orbell,  6  Mod.,  42 ; 
Young  v.  The  King,  3  Term.,  98. 


11 


't 


"U" 


.'I 


Lyon,  J.  I.  It  is  maintained  by  the  learned  counsel  for  the 
defendants,  that  the  information  is  fatally  defective  in  that  it 
fails  to  show  the  means  which  t)ic  defendants  conspired  to 
employ  for  the  purpose  of  defrauding  Burke  of  his  money. 
Their  position  is,  that  the  false  pretenses  and  devices  which  the 
defendants  conspired  to  use  to  that  end  should  be  specifically  set 
out  in  the  information. 

Were  this  an  information  for  obtaining  money  of  Burke  by 
false  pretenses,  the  position  would  be  well  tiken.  For  we  take 
it  to  bo  well  settled,  that  in  such  an  information  the  false  pre- 
fonses  resorted  to  by  the  accused  to  pcrpetra'tO  the  fraud  must  be 
sot  out  with  reasonable  particularity,  and  that  an  averment 
tliercof  in  general  language  of  the  statute  on  that  subject  (R.  S., 
ell.  165,  sec.  38),  is  insufHcient  before  verdict:  State  v.  Green, 
7  Wis.,  676. 

But  there  is,  undoubtedly,  a  broad  distinction  in  this  respect 
between  an  information  for  obtaining  money  or  prt»i)erty  by 
false  pretenses  and  one  for  a  conspiracy  to  do  so.  In  the  latter 
case  the  averment  may  bo  less  specilic  than  is  rocpiired  in  the 
for:ner.     The  distinction  is  well  stated  by  Dewey,  J.,  in  Com, 


38 


AMERICAN  CRIMINAL  REPORTS. 


Hi: 


V.  Eofttman,  1  Cnsli.,  223,  as  follows :  "  If  an  indictment  for 
murder  sliould  allege  merely  that  the  accused  had  committed  the 
crime  of  murder  upon  the  person  of  one  A  B,  or  if  an  indict- 
ment for  larceny  sliould  simply  set  forth  that  the  defendant  had 
stolen  from  C  D,  in  neither  ease  would  the  offense  be  set  forth 
with  the  particularity  and  precision  required  by  law.  It  must 
be  conceded,  however,  that  in  indictments  for  conspiracy  a 
different  rule  prevails  to  some  extent;  and  the  precise  inquiry 
which  we  have  now  to  make  is,  to  what  extent."  The  offense  of 
conspiracy,  in  one  respect,  is  doubtless  peculiar.  It  nuiy,  unlike 
most  offenses,  be  committed  without  any  overt  act.  A  criminal 
purpose  to  do  an  unlawful  act,  or  to  do  a  lawful  act  by  criminal 
means,  mutually  assented  to  or  agreed  upon  by  two  or  more  ]>er- 
sons  may,  by  such  assent  and  agreement,  ripen  into  crime,, 
although  no  act  be  done  in  pursuance  of  it. 

"  The  peculiar  character  of  this  offense  lias  fully  justified,  in 
certain  cases  of  conspiracy,  a  departure  from  the  ordinary  rules 
of  criminal  pleading.  The  means  proposed  to  be  used  to  effect 
a  criminal  purpose  are  not,  in  all  cases,  to  be  set  out,  and  are  not^ 
in  all  cases,  required  to  be  proved;  nor  are  they,  in  all  cases,  a 
necessary  element  of  the  crime  of  cons])iracy.  To  a  certain 
extent,  the  rules  upon  the  subject  are  uncontroverted.  If  the 
alleged  conspiracy  be  an  unlawful  agreement  of  two  or  more 
persons  to  do  a  criminal  act,  which  is  a  well-known  and  recf>g- 
nized  offense  at  common  law,  so  that  by  reference  to  it  as  siu'h^ 
and  describing  it  by  the  term  by  which  it  is  familiarly  known, 
the  nature  of  the  offense  is  clearly  indicated,  in  such  a  case  a 
charge  of  conspiracy  to  commit  the  offciiae,  describing  it  in  gen- 
eral terms,  will  be  proper.  On  the  other  hand,  if  the  agreement 
or  combination  be  to  do  an  act  wliicli  is  not  unlawful  in  Itself, 
by  the  use  of  unlawful  means,  those  means  must  be  particularly 
set  forth,  or  the  indictment  will  bo  bad."  This  is,  doubtless,  a 
correct  statement  of  the  law,  and  were  the  obtaining  of  projierty 
by  false  pretenses  a  common  law  oifenso  in  every  case,  there 
would  be  no  doubt  of  the  sufficiency  of  the  i?ifonnation  in  the 
present  case.  But  in  many  cases  the  obtaiiiing  of  money  or 
property  by  such  means  is  not  a  criminal  offense  at  common  law, 
but  is  only  so  by  virtue  of  the  statute :  U.  S.,  cli.  105,  sec.  i\S. 
The  question  is,  therefore,  whether  one  rule  of  pleading  should 
be  applied  to  an  information  cliargiiig  a  conspiracy  to  do  an  act 
criminal  at  the  common  law,  and  another  rule  to  an  information 


charging 

We  are  a\ 

the  two  ci 

unable  to 

tion.     In 

averments 

and,  that 

criminal  I 

Itoth  cases 

be  appliei 

An  ind 

or  more  \ 

criminal  c 

in  itself 

Per  Shav 

some  qua 

them  liei 

the  cases 

the  consj 

stated  in 

in  each  is 

unlawful, 

last  case 

"  When  t 

agrecineii 

criminal  ( 

stated  in 

which  is 

compass  { 

ful,  by  t 

unlawful 

other  crii 

mont.     y 

lish  auth 

r.  C,  40 

senator,  1 

The  fa 

federacy 

pose,  wh 

ment,  tk( 


STATE  V.  CROWLEY. 


39 


charging  a  conspiracy  to  do  an  act  made  criminal  by  statute. 
We  are  aware  that  there  are  decisions  which  seem  to  hold  that 
the  two  cases  are  governed  by  different  rules,  but  we  are  quite 
unable  to  find  any  solid  gi-ound  upon  which  to  rest  the  distinc- 
tion. In  either  case  the  information  must  contain  suflicient 
averments  to  sliow  tliat  the  conspiracy  was  to  do  a  criminal  act ; 
and,  that  appearing,  what  can  it  signify  that  such  an  act  is  made 
criminal  by  statute  instead  of  being  so  by  the  common  law?  In 
l)oth  cases  it  would  seem  that  the  same  rules  of  pleading  should 
be  applied. 

An  indictable  conspiracy  is  defined  to  be  a  combination  of  twu 
(»r  more  persons,  by  some  concerted  action,  to  accomplish  some 
criminal  or  uidawful  purpose,  or  to  accomjdish  some  purpose  not 
in  itself  criminal  or  unlawful,  by  criminal  or  unlawful  means  : 
Per  Shaw,  C.  J.,  in  Com.  v.  Hunt,  4  Met.,  123.  There  are 
some  qualifications  to  this  definition,  but  we  need  not  consider 
them  here.  It  will  be  found,  on  examination,  that  in  many  of 
the  cases  which  hold  that  the  means  by  which  the  purposes  of 
the  conspirators  are  to  be  accomplished  must  be  particularly 
stated  in  the  indictment  or  information,  the  cons])iracy  alleged 
in  each  is  to  accomplish  some  purpose  not  in  itself  criminal  or 
unlawful,  but  by  the  use  of  criminal  or  unlawful  means.  In  the 
last  case  cited  {Com.  v.  Hunt),  Chief  Justice  Shaw  said : 
"When  the  criminality  of  the  conspiracy  consists  in  an  unlawful 
agreenHjnt  of  two  or  more  persons  to  compass  or  promote  some 
criminal  or  illegal  purpose,  that  purpose  must  be  fully  and  clearly 
stated  in  the  indictment,  and  if  the  crimiiudity  of  the  offense 
which  is  intended  to  be  charged  consists  in  the  agreement  to 
compass  or  promote  some  purpose  not  of  itself  criminal  or  uidaw- 
ful, by  the  use  of  fraud,  force,  falsehood  or  other  criminal  or 
mdawfid  means,  such  intended  use  of  fraud,  force,  falsehood  or 
other  criminal  or  unlawful  means  must  be  set  out  in  the  indict- 
ment. Such,  we  think,  is,  on  the  whole,  the  result  of  the  Eng' 
lish  authorities,  although  they  are  not  quite  uniform  :  1  East. 
r.  C,  401  ;  1  Stark.  Crim.  PI.  (2d  ed.),  15(1 ;  oi)inion  of  Spencer, 
senator,  9  Cow.,  58(5,  et  .vey." 

The  fair  inference  from  this  language  is,  that  where  the  con- 
federacy consists  in  an  agreement  to  accomplish  a  criminal  j)ur- 
pose,  while  the  purpose  must  bo  clearly  expressed  in  the  indict- 
ment, the  specific  meana  by  which  it  is  proposed  to  accomplish  it 


i  y^ 


i';:( 


m 


40 


AMERICAN  CRIMINAL  REPORTS. 


need  not  be  avei-i-ed.  And  we  tliink  this  view  is  sustained  by 
the  weight  of  authority. 

This  information  charjres  a  combination  of  the  defendants  to 
accomplish  a  criminal  purpose,  to  wit,  to  defraud  Burke  of  his 
luoiicy  by  false  pretenses,  tokens  and  devices,  and  such  purpose 
is  fully  and  clearly  stated  in  the  information.  AV^e  think  the 
information  fultills  the  requirement  of  the  declaration  of  rights 
(Const.,  art.  1,  sec.  9),  in  that  it  states  sufficiently  "  the  nature 
and  cause  of  the  accusation  "  aj^aiust  the  defendants  ;  and  that  it 
is  not  essential  to  set  out  the  specific  means  by  the  use  of  which 
the  alleged  conspirators  proposed  to  accomplish  their  criminal 
purpose. 

This  view  is  supported  by  the  consideration  that  the  con- 
spiracy itself  constitutes  the  offense,  although  the  purjiose  of  it 
be  not  effected. 

Had  the  defendants  met  and  agreed  to  obtain  one  hundred  and 
ten  dollars  of  Bnrke,  by  means  of  false  pretenses  and  devices,  or 
by  the  use  of  privy  and  false  tokens,  and  left  it  to  one  of  their 
number  to  execute  the  conspiracy  by  employing  such  pretenses, 
tokens  or  devices  to  that  end  as  he  might  choose,  there  is  no 
doubt  the  offense  would  have  been  complete,  and  that  an  indict- 
ment for  a  conspiracy  to  compass  a  criminal  purpose  would  lie 
against  the  defendants,  although  nothing  had  been  done  in  exe- 
cution thereof.  Yet,  in  such  an  indictment,  it  would  be  im])os- 
sible  to  set  out  the  specific  means  by  which  the  criminal  purpose 
was  to  be  accuini)lished,  for  they  were  never  agreed  upon.  True, 
no  such  difficulty  would  arise  where  the  objects  of  the  con- 
spiracy have  been  executed;  but  we  are  not  aware  that  the  law 
makes  any  distinction  between  executed  and  unexecuted  con- 
spiracies in  respect  to  the  averments  required  in  indictments 
therefor. 

The  first  question  submitted  by  the  learned  circuit  judge  must, 
therefore,  bo  answered  in  the  affirmative. 

II.  Wo  aru  now  to  determine  the  second  question  submitted 
to  us,  which  ',8  as  follows :  Does  the  evidetice  in  the  case  sup- 
port the  charge  of  conspiracy  as  contained  in  tlu)  said  first  count? 
It  has  already  been  said  that  the  information  charges  a  con- 
spiracy by  the  defendants  to  commit  an  act  made  criminal  by 
section  thirty-eight  of  the  statute— that  is,  to  obtain  money  of 
Burke,  knowingly  and  designedly,  by  false  pretenses,  and  bv 
false  and  privy  tokens.     It  seems  clear  that  the  defendants  can- 


not lawfull 
mat  ion,  uii 
thereof  wat 

The  onl.) 
])urpoBe,  is 
Burke. 

Hence,  i 
of  section 
support  th( 
otherwise  i 
the  defend; 
tiou  on  an 
oI)tainiiig  i 

The  ffft( 
Crowley,  m 
the  latter 
money  for 
of  an  offen 
was  a  mere 
crime.     Oi 
Burke  woi 
having  in  1 
knowing  tl 
false :    R. 
executory  ( 

The  two 
through  th 
false  pretei 
feit  money 
iise  it  in  a 
vented  hin 

In  the  ci 
Burke  sup 
cMinmitac; 
have  been  ^ 

Hence,  w 
in  the  fur 
part.  The 
stances,  by 
tliirty-eigh 

It  has  1> 


STATE  V.  CROWLEY. 


not  lawfully  be  convicted  of  the  conspiracy  charged  in  the  infor- 
mation, unless  the  evidence  establishes  the  fact  that  the  purpose 
tliereof  was  a  criminal  purpose  within  the  statute. 

The  only  evidence  before  us  of  the  alleged  conspiracy  or  its 
])urpose,  is  the  acts  of  defendants  in  obtaining  money  from 
Burke. 

Hence,  if  tliose  acts  constitute  an  offense  within  the  provisions 
of  section  thirty-eight  of  the  statute,  the  evidence  is  sufficient  to 
support  the  charge  of  conspiracy  as  contained  in  the  information, 
otlicrwise  not.  We  are  to  inquire,  therefore,  whether  the  acts  of 
tlie  defendants,  as  proved  on  the  trial,  would  support  a  convic- 
tion on  an  information  against  them,  under  the  statute,  for 
ol)t;iining  money  of  Burke  by  false  pretenses. 

The  fifteen  dollars  first  paid  by  Burke  to  the  defendant  C. 
Crowley,  was  |)aid  on  an  executory  contract  between  them,  that 
the  latter  should  procure  for  Burke  a  quantity  of  counterfeit 
money  for  circulation.  There  does  not  seem  to  be  any  element 
of  an  offense,  under  section  thirty-eight,  in  this  transaction.  It 
was  a  mere  executory  contract  of  sale,  the  breach  of  w^'ich  is  no 
crime.  On  the  contrary,  had  the  contract  been  performed, 
Burke  would  have  been  guilty  of  a  criminal  offense,  to  wit,  of 
having  in  his  possession  counterfeit  money  or  evidences  of  debt, 
knowing  the  same  to  be  counterfeit,  with  intent  to  utter  it  as 
false :  R.  S.,  ch.  167,  sec.  6.  It  were  better,  therefore,  that  the 
executory  contract  be  broken  than  kept. 

The  two  sums  of  twenty  dollars  and  twenty-five  dollars,  paid 
through  the  ex])ress  company,  were  obtained  from  Burke  on  the 
false  pretense  that  the  boxes  received  by  him  contained  counter- 
feit money.  Had  he  obtained  what  he  expected  he  intended  to 
use  it  in  a  criminal  manner.  The  false  pretenses,  therefore,  pre- 
vented him  from  committing  such  crime. 

In  the  case  of  the  fifty  dollars  paid  to  the  defendant  Carnalian, 
Burke  supposed  he  was  bribing  Carnalian,  with  that  money,  to 
('((uunita  (".line;  and  had  this  supposition  been  true,  Burke  would 
Imve  been  pui'fli'cpK  crhiiii)is  therein :     R.  S.,  ch.  167,  sec.  22. 

Ilonco,  all  the  money  obtained  from  Burke  was  i>aid  by  him 
in  the  furtherance  of  criminal  motives  and  intentions  on  liia 
part.  The  money  having  been  obtained  under  such  circum- 
Btances,  by  false  pretenses  atul  tokens,  is  the  case  within  sectitm 
thirty-eight,  before  cited  i 

It  has  been  held  in  New  York,  where  the  same  statute  is  in 


J1 


if 


5f ' 


42 


AMERICAN  CRIMINAL  REPORTS. 


.._  J  DR.. 


force,  that  false  pretenses  of  that  character  are  not  within  the 
statute,  and  not  punisliable  criminally.  In  McCord  v.  The 
People,  46  N.  Y.,  470,  it  is  said  per  curiam,  that  "  the  prosecu- 
tor j)arted  with  his  jiropertj  as  an  inducement  to  a  supposed 
officer  to  violate  the  law  and  his  duties ;  and  if,  in  attempting  to 
do  this,  he  has  been  defrauded,  the  law  will  not  punish  his  con- 
federate, although  such  confederate  may  have  been  instrumental 
in  inducing  the  commission  of  the  offense. 

"Neither  the  law  nor  public  policy  designs  the  protection  of 
rogues  in  their  dealings  with  each  other,  or  to  insure  fair  deal- 
ing and  truthfulness,  as  between  each  other,  in  their  dishonest 
practices.  The  design  of  the  law  is  to  protect  those  who  for 
honest  purpose  are  induced,  upon  false  and  fraudulent  repre- 
sentations, to  give  credit  or  part  with  their  property  to  another, 
and  not  to  protect  those  who,  for  unworthy  or  illegal  purposes^ 
part  with  their  goods." 

So  also  in  The  People  v.  Stetson,  4  Barb.,  151,  Mr.  Justice 
Welles,  delivering  the  opinion  of  the  court,  says :  "  In  all  the 
mimerous  reported  cases  under  the  English  and  American 
statutes  to  prevent  the  obtaining  money,  etc.,  by  false  tokens  or 
pretenses,  I  have  not  found  one  which  was  held  to  be  within  the 
statute,  in  which  the  transaction  on  the  part  of  the  person  injured 
would  not  have  been  lawful,  provided  the  representations  or  pre- 
tenses were  true,  nor  where  such  representations  or  tokens,  if 
true,  were  not  in  violation  of  law.  I  cannot  believe  the  statute 
was  designed  to  protect  any  but  innocent  persons,  nor  those  who 
appear  to  have  been  in  any  degree  particeps  criminia  with  the 
defendant.  To  determine  what  attitude  he  occti])ie8  in  that 
respect,  it  should  be  assumed  that  all  the  representations  made  to 
him,  whether  in  words  oi-  tokens,  were  true ;  because  it  as  an 
essential  ingredient  of  the  case  that  1  ^  l)ulieve(l  tliem  to  be  true; 
otherwise  he  could  not  claim  that  lie  was  influenced  by  them. 
Looking  at  his  conduct  in  tliat  light,  and  with  that  assumption, 
if,  in  parting  with  his  money  or  ])roperty  or  yielding  his  signa- 
ture, he  was  himself  guilty  of  a  crime,  it  cannot  be  that  he  is 
within  the  protection  of  the  statute.  Testing  the  case  under 
consideration  by  these  rules,  it  is  iinpossihle,  in  my  opinion,  to 
sustain  the  indictment.  jJarlow  believed  that  the  defendant  was 
a  constable,  ami  had  a  warrant  against  him  for  a  rape.  He  is 
chargeable  with  knowledge  that  the  law  forbade  any  settlement 
or  comj)romise  of  tlu;  nuitter,  and  that  it  would  bo  a  misdemeanor 


STATE  V.  CROWLEY. 


43 


in  the  defendant  to  neglect  to  execute  the  procesB.  In  attempt- 
ing to  cheat  the  law,  he  has  himself  been  defrauded  of  his 
watch." 

In  The  Peojyle  v.  Clovgh,  17  Wend.,  351,  Mr.  Justice  Cowen 
refers  to  the  preamble  of  the  act  of  30  Geo.  II.,  ch.  24,  of  which 
the  statute  of  New  York  and  our  own  are  substantially  copies,  as 
showing  the  reason  and  scope  of  those  statutes.  It  is  as  follows : 
"  Whereas  divers  evil  disposed  persons,  to  support  their  profli- 
gate way  of  life,  have,  by  various  subtle  stratagems,  threats  and 
devices,  fraudulently  obtained  divers  sums  of  money,  goods, 
wares  and  merchandise,  to  the  great  injury  of  industrious  fam- 
ilies, and  to  the  manifest  prejudice  of  trade  and  credit."  This 
preamble  goes  to  show  that  the  law  was  originally  enacted  for 
the  protection  of  trade  and  credit,  and  of  honest  and  industrious 
people,  and  not  (in  the  language  of  McCord  v.  The  Peojile)  "  for 
the  protection  of  rogues  in  their  dealings  with  each  other." 

The  doctrine  of  the  above  cases  was  vigorously  assailed  upon 
principle  by  Mr.  Justice  Peckham,  dissenting  from  the  decision 
of  the  conrt  in  McCord  v.  The  People,  and  he  cited  Com.  v. 
Harris,  22  Pa.  St.  (10  Harris),  253,  and  Com.  v.  Morrill,  8 
Cush.,  571.  It  must  be  conceded  that  these  cases,  particularly 
the  former,  sustain  his  views. 

Hex  V.  Stratton,  cited  in  a  note  to  Buck  v.  Buck,  1  Campb., 
549,  illustrates  the  same  principle,  and  is  directly  in  point  in  this 
case.  The  indictment  was  for  a  conspiracy  to  deprive  the  prose- 
cutor of  the  office  of  secretary  of  an  illegal  comj^any.  Lord 
Ellenborough  said  :  "  This  society  was  certainly  illegal.  There- 
fore, to  deprive  an  individual  of  an  office  in  it  cannot  be  treated, 
as  an  injury.  When  the  prosecutor  was  secretary  of  the  society, 
instead  of  having  an  interest  which  the  law  would  protect,  he 
was  guilty  of  a  crime." 

In  Jacob's  Law  Dictionary  the  essential  elements  of  a  criminal 
conspiracy  are  thus  stated :  "  Confederacy  (confederatlo)  is 
when  two  or  more  combine  together  to  do  any  damage  or  injury 
to  another,  or  to  do  any  unlawful  act.  And  false  confederacy 
between  divers  persons  shall  be  punished,- though  nothing  be  put 
in  execution.  JJut  this  confcdenwy,  punishable  by  law  bi'fore  it 
is  executed,  ought  to  have  these  incidents  :  First,  it  must  bo 
declared  by  some  matter  of  prosecution,  as  by  making  of  bonds, 
or  promises,  the  one  to  the  other ;  secondly,  it  should  be  mali- 
cious, as  for  unjust  revenge ;  thirdly,  it  outjht  to  be  false,  against 


AMERICAN  CRIMINAL  REPORTS. 


cm  innocent;  and  lastly,  it  is  to  be  out  of  court,  voluntarily: 
Terms  de  Ley,  158."  In  the  present  case,  the  confederacy  or 
conspiracy  charged  in  the  information  is  puiiishaldo  by  law 
before  it  is  executed,  and  hence  is  within  the  above  rule.  As 
already  observe',  the  proofs  show  that  it  is  not  '■'■faUe,  as 
against  an  mnocent.'''' 

After  much  investigation  and  deliberation,  we  have  reached 
the  conclusion  that  the  rule  of  the  New  York  cases  is  supported 
by  the  better  reasons,  as  well  as  by  the  weight  of  authority,  and 
that  it  is  our  duty  to  adopt  it.  We  do  so  with  hesitation, 
because  able  judges  and  courts  have  held  a  different  rule  ;  and 
with  reluctance,  because  the  acts  of  the  defendants  (or  some  of 
tliem),  as  disclosed  by  the  evidence,  were  outrageous  and  inde- 
fensible, and  the  perpetrators  richly  merit  punishment.  But  it 
is  far  better  that  they  should  escape  punishtnent  under  this  infor- 
mation than  that  sound  legal  rules  should  be  disregarded  to  meet 
the  supposed  exigencies  of  a  particular  case. 

It  may  further  be  observed  (although  not  essential  to  the 
determination  of  the  question  under  consideration),  that  had 
Burke  exercised  common  jirudence  and  caution,  he  could  not 
have  been  misled  by  the  false  pretenses  by  whi(;h  he  was  induced 
to  pay  the  money  to  Carnahan.  He  had  in  his  jwssession  the 
box  which  the  latter  charged  contained  counterfeit  money,  and, 
by  an  examination  of  its  contents,  could  readily  have  ascertained 
whether  the  charge  was  true.  The  cases  cited  by  the  counsel  for 
the  defendants  abundantly  show  that  such  a  case  is  not  within 
tlie  statute. 

It  follows,  from  the  foregoing  views,  that  the  second  question 
submitted  by  the  learned  circuit  judge  for  our  determination 
must  be  answered  in  the  negative. 

The  case  must  be  certified  to  the  circuit  court  with  these 
answers  to  the  questions  reported,  and  with  the  direction  that 
that  court  proceed  in  accordance  with  our  decision. 

By  the  court — It  is  so  ordered. 


ESCAPI 

It  is  error  to  < 
On  the  trial  o 
custody  i 
tody.    T: 
to  enable 
make  the 
It  is  error  to 
or  that  if 
diet  of  gi 
Custody  by  a 
illegal  if 
reasonabl 
instructi( 
conveyin 
Cruel  treatmc 
is  evideiv 
bona  Jidei 
Custody  volu 
lawfully 
cially  if  t 
To  make  the 
not  be  pc 
it.  or  is  g 
Actual  guilt  ( 
out  wan 
therefore 
convictii] 
is  not  ot 
lawfulne 
ation  of 

Crimina 
rant.  Evi 
court,  Maj 

Tlabersh 
(name  unl< 
Lawrence 
not   guilty 
case : 

On  the 
clerks,  r>a 
which  con 


is 

i 


Escape: 


HABERSHAM  v.  STATE. 

Habersham  v.  State. 
(56  Geo.,  61.) 
Gharga-—  Legal  custody  —  Jury  as  judges  of  the  law. 


# 


It  is  error  to  charge  the  jury  that  they  are  in  no  sense  judges  of  the  hiw. 

On  the  trial  of  a  prosecution  for  aiding  to  escape  from  custody,  the  fact  of 
custody  is  for  the  jury,  and  so,  also,  is  the  legality  of  that  particular  cus- 
tody. The  court  should  acquaint  the  jury  with  the  needful  rules  of  law 
to  enable  them  to  distinguish  legal  from  illegal  custody,  and  let  thuui 
make  the  application  thereof  to  the  facts  in  evidence. 

It  is  error  to  charge  that  the  custody  was  legal  if  the  state's  evidence  is  true, 
or  that  if  the  jury  believe  the  evidence  for  the  state  they  must  find  a  ver- 
dict of  guilty. 

Custody  by  a  private  person  after  a  legal  arrest  without  warrant,  becomes 
illegal  if  protracted  for  an  imreasonahle  time,  and  whether  the  time  was 
reasonable  or  unreasonable  is  a  question  for  the  jury,  under  proper 
instructions  from  the  court  as  to  the  promptness  which  the  law  exacts  in 
conveying  the  parly  arrested  before  a  magistrate. 

Cruel  treatment  of  his  prisoner  by  the  captor  may  be  considered  (where  there 
is  evidence  on  the  point)  to  illustrate  the  purpose  of  the  arrest  and  the 
bona  fides  of  the  custody. 

Custody  voluntarily  assumed  by  a  private  person  without  warrant,  may  be 
lawfully  terminated  with  his  consent,  by  turning  tlie  prisoner  loose,  espe- 
cially if  the  latter  be  not  guilty. 

To  make  the  violation  of  a  lawful  custody  criminal,  its  legal  character  need 
not  be  positively  known  to  the  offender,  if  he  has  good  reason  to  believe 
it.  or  is  grossly  negligent  in  the  use  of  means  to  inform  himself. 

Acfiial  guilt  of  the  person  held  in  custody  for  felony  by  a  private  person  with- 
out warrant,  is  not  indispensable  to  the  legality  of  the  custody,  and, 
therefore,  neither  his  conviction  nor  his  prosecution  is  a  prerequisite  to 
convicting  another  for  assisting  him  to  escape.  The  question  of  his  guilt 
is  not  otherwise  involved  than  as  throwing  light  upon  the  motive  and 
lawfulness  of  his  arrest,  but  for  that  purpose  it  is  open  to  the  consider- 
ation of  the  jury. 


Arrest.     Charges  of  court.     War- 


Criminal  law.     E.scape. 
rant.     Evidence.     Before  Judge  Tompkins,  Chatham  superior 
(!0urt,  May  term,  1875. 

Habersham  was  indicted  for  the  offense  of  assisting  a  prisoner 
(name  unknown  to  the  jurors)  to  escape  from  the  custody  of 
Lawrence  Banks  and  Chatliam  Rodgers.  The  defendant  pleaded 
not  guilty.  The  evidence  made,  in  substance,  the  following 
ciiHe : 

On  the  night  of  June  13th,  1875,  at  nlKnit  ono  o'cl •'•!;.  tMo 
'•K'l-ks,  i'anks  and  Rodgers,  by  name,  arrcslcd  m  Ihpv  in  tlic  house 
which  connected  with  the  store  in  which  they  were  employed. 


1; 

\ 

11 

AMERICAN  CRIMINAL  REPORTS. 


They  state  tliat  tin's  boy,  with  some  other  person  who  ran  off, 
broke  into  the  house  with  the  view  of  passing  tlience  into  the 
store ;  that  thoy  only  struck  him  for  the  purpose  of  overcoming 
his  resistance  when  it  was  sought  to  arrest  him :  that  the  boy 
had  a  sack  over  his  head,  with  lioles  for  his  eyes  cut  in  it. 

After  his  arrest  he  was  tied,  and,  according  to  the  evidence  of 
the  defendant,  whipped  twice.  Rodgers  sat  up  witli  him  .all 
night.  In  the  morning  Banks  went  to  tell  the  proprietors  of  the 
store  what  had  occurred.  During  his  absence,  according  to  the 
testimony  of  the  state,  at  about  eight  o'clock,  defendant  untied 
the  boy  and  took  him  away  from  Rodgers.  Defendant  said  he 
would  take  upon  himself  the  responsibility  of  releasing  him. 
Rodgers  s;iid  the  boy  had  broken  into  the  house.  Defendant  said 
that  he  was  a  constable  and  knew  the  rules  of  law.  Rodsrers  did 
not  resist  defendant,  as  he  was  afraid  of  him.  There  had  been  a 
'  stonn  on  the  previous  evening  at  about  nine  o'clock. 

The  boy,  whose  name  was  subsequently  discovered  to  be 
Solomon  Weaver,  testified  that  he  went  through  open  doors  into 
the  house  for  the  purpose  of  avoiding  a  storm ;  that  he  went 
into  a  closet  and  \vent  to  sleep ;  that  he  entered  before  the  shop 
was  closed ;  that  when  discovered  he  was  shot  at,  arrested  and 
whipped;  that  when  defendant  came  in  the  morning  he  gave 
him  this  account  of  the  transaction ;  that  Rogders  then  told  the 
defendant  to  turn  him  loose,  which  defendant  did;  that  he 
immediately  gave  himself  up,  knowing  he  had  done  nothing 
wrong. 

Defendant  stated  that  on  the  night  of  June  13th  he  was  up 
very  late,  and  in  passing  the  house  which  ]»ad  been  broken  into 
he  heard  some  one  crying;  that  he  peeped  into  the  house  and 
saw  a  boy  tied ;  that  he  got  up  at  twenty-five  minutes  after  nine 
o'clock  A.  M.  and  saw  a  crowd  in  front  of  the  store ;  that  he  went 
down  there  and  saw  this  boy,  who  gave  hini  his  account  of  the 
trouble  he  was  in,  siying  thar  Rodgers  had  whipped  him  for 
coming  in  and  sheltering  himself  from  the  storm  :  that  he  turned 
him  loose,  telling  Rodgers  that  he  had  no  right  to  whip  him  ; 
tliat  he  turned  the  boy  loose  ])y  consent  of  Rodgers,  who  said  he 
did  not  wish  to  have  the  boy  dealt  with  by  law,  but  would  give 
him  a  few  stripes. 

The  jury  found  the  defendant  guilty.  A  motion  was  made 
tor  a  new  trial,  upon  the  following  grounds,  to  wit : 

l8t.    Because  the  court  erred  in  charging  the  jury  that  they 


] 


could  find  d 
to  have  esca 
2d.  Beca 
in  no  sense, 
fr(»ni  the  coi 
3d.  Beca 
juilges  of 
j»crson  was 

4th.  Bee 
legal  if  the 
5th.  Bee 
exclusive  jt 
legal  or  not 
closed. 

0th.  Be( 
believed  fro 
an  unreason 
legal,  and  tl 
7th.  Be( 
not  considei 
the  time  he 
8th.  Be( 
jury  believe 
defendant  t 
ant  guilty. 

i)th.     Be< 
jury  could 
from  the  ev 
offense. 

10th.     B 
making  up 
whether  th( 
but  that  if 
the  state  dii 
of  any  bnrj. 
^tute,  they 
The  mot: 
/.  F.  lii 
A.R.  L 
state. 


A 


HABERSHAM  v.  STATE. 


47 


i 


couUl  find  defendant  guilty  notwithstanding  the  person  claimed 
to  have  escaped  had  never  been  prosecuted. 

2tl.  Because  the  court  erred  in  charging  that  the  jury  were, 
in  no  sense,  judges  of  the  law,  but  must  receive  the  law  as  given 
from  the  court  as  law. 

3d.  Because  the  court  erred  in  charging  that  they  were  not 
judges  of  the  fact  as  to  whether  the  custody  of  the  escaped 
j»erson  was  legal  or  not  under  the  circumstances. 

4th.  Because  the  coxirt  erred  in  charging  that  the  custody  was 
legal  if  the  evidence  adduced  for  the  state  was  true. 

5th.  Because  the  court  erred  in  charging  that  it  was  the 
exclusive  judge  of  the  question  as  to  whether  the  custody  was 
legal  or  not  in  this  case,  under  the  circumstances  and  facts  dis- 
closed. 

Gth.  Because  the  court  refused  to  charge  that  if  the  jury 
lieUcved  from  the  evidence  that  the  holding  of  the  boy  was  for 
an  imreasonable  time  after  his  arrest,  then  the  custody  was  not 
legal,  and  they  must  acquit. 

7th.  Because  the  court  erred  in  charging  that  the  jury  could 
not  consider  the  fact  that  the  boy  was  being  cruelly  treated  at 
the  time  he  was  released. 

8th.  Because  the  court  erred  in  refusing  to  charge  that  if  the 
jury  believed  that  Rodgers,  who  had  the  boy  in  custody,  told  the 
defendant  to  turn  him  loose,  then  they  could  not  find  the  defend- 
ant guilty. 

Dtli.  Because  the  court  erred  in  refusing  to  charge  that  the 
jury  could  not  find  the  defendant  guilty  unless  they  believed 
frotn  the  evidence  that  he  knew  the  boy  was  held  for  a  criminal 
offense. 

10th.  Ik'cause  the  court  erred  in  charging  the  jury  that,  in 
making  np  their  verdict,  they  could  not  consider  the  question 
wiiether  the  boy  had  or  had  not  been  guilty  of  a  criminal  offense ; 
but  that  if  the  boy  was  in  custody  of  Rodgers,  as  the  evidence  of 
the  state  disclosed,  although  he  may  have  been  perfectly  innocent 
of  any  burglary,  still,  if  the  jury  believed  the  evidence  for  the 
btate,  they  must  find  the  defendant  guilty. 

The  motion  was  overruled  and  the  defendant  excepted. 

J.  V.  lii/als,  by  brief,  for  plaintiff  in  error. 

A.  R.  Lamar,  solicitor-general,  by  W.  G.  Charlton,  for  the 
state. 


iJ 


:: 


I, 


m 


AMERICAN  CRIMINAL  REPORTS. 


Blecklky,  Judge  :  1.  Logically  considered,  the  trial  of  a 
eriiiiiiial  t-aso  is  an  effort  to  conJi)lcte  a  liual  syllogism,  having  for 
one  premise,  matter  of  law ;  for  the  other,  matter  of  fact ;  and 
for  the  conclusion,  the  resulting  proposition  of  guilty  or  not 
guilty.  It  is  the  duty  of  the  judge  to  supply  the  jury  with 
material  for  tlie  major  premise  of  this  syllogism ;  and  it  is  the 
duty  of  the  jury  to  collect  from  the  evidence  the  minor  premise, 
compare  the  two,  draw  the  conclusion,  and  declare  it  in  their 
verdict.  Inasnmch  as  it  is  possible  for  the  judge  to  mistake  the 
law  or  misrepresent  it,  the  material  which  he  supplies  or  some 
part  of  it,  may  be  erroneous.  Are  the  jury,  nevertheless,  to 
accept  it  as  correct,  or  is  it  subject  to  their  revision  and  correc- 
tion ?  May  they,  if  they  think  it  faulty,  reject  it,  and  substitute 
in  its  place  something  corresponding  to  their  own  convictions  of 
what  the  law  really  is  ?  Are  the  scriptures  of  the  law  an  open 
bible  ;  or  must  they  be  read  for  the  laity  by  the  priesthood  of  the 
bench  ?  The  power  of  overruling  the  judge's  charge,  apparently 
conceded  to  the  jury  by  this  court  in  most  of  the  cases  (see  Hop- 
kins' Annotated  Penal  Laws,  section  1G02),  prior  to  Brown's 
case,  reported  in  40  Georgia  /Reports,  689,  is  in  the  latter  denied  ; 
and,  by  several  later  adjudications,  the  doctrine  of  Brown's  case 
has  become  the  established  rule  of  decision.  See  41  Georgia 
Reports,  217;  49  Ih'uL,  485;  52  Ih'ul,  .S2,  290,  GOT. 

It  is,  perhaps,  too  late  for  a  single  member  of  i  "e  court  to 
urge  his  individual  conviction  that  Brown's  case  was  an  "iniiov 
tion."  The  learned  judge  who  delivered  the  opinion  of 
court  in  that  and  in  some  of  the  subsequent  cases  cited  al  , 
has  declared  that  it  Mas  not  an  innovation,  that  it  was  oj>puMil 
to  previous  dida  only,  not  to  pi-evious  decisions.  He  thuuglit 
the  true  principle  of  the  fornvjr  cases  was  preserved.  Accpiies- 
ccnce  in  that  view  would,  probably,  at  this  late  day,  be  the  l)ctter 
line  of  judicial  conduct  for  any  of  his  successors  wlio  might  be 
of  a  different  oi>inion.  The  now  current  holding  is,  in  effect, 
that,  to  the  jury,  the  highest  and  best  evidence  of  what  the  law 
is,  is  tlie  charge  of  the  court;  indeed,  that  tlieir  only  final  access 
to  the  law  is  through  tliis  charge.  And  it  is  maintained  that,  in 
order  to  judge  of  tlie  law,  it  is  in  no  wise  necessary  that  the  jury 
should  be  invested  with  power  to  revise  the  chaige  and  correct 
it.  As  the  judge  is  the  organ  of  the  law  itself,  through  whom  is 
made  known  to  the  jury  what  the  law  is,  they  are  to  receive  it  as 
he  lays  it  down,  and  not  di.^credit  him  as  a  legal  authority.     In 


HABERSHAM  v.  STATE.  ^ 

judjjing  the  law  tliey  are  to  pass  upon  what  it  is  in  the  charge, 
not  upon  what  it  is  out  of  the  charge ;  and  coining  thus  to  an 
understanding  of  it,  are  to  determine  wliat  is  its  right  and  proper 
application  to  the  facts  in  evidence,  and  what  conclusion  results 
from  comhining  the  two  elements  of  law  and  fact.  When  the 
juiy  hear  the  chai'ge,  understand  what  it  means,  and  apply  it  to 
the  facts  before  them,  they  have  judged  of  the  law  which  the 
charge  contains ;  and,  as  they  have  no  proper  access  to  any  differ- 
ent law,  there  is,  for  them,  no  different  law  on  the  subject,  and 
they  cannot  correct  the  errors  of  the  judge  if  they  would.  Rela- 
tively to  the  jury,  the  charge  stands  like  a  volume  of  law  pul> 
lit^lied  by  authority — the  only  volume  so  published  of  which  they 
know  the  contents.  But  none  of  the  cases  hold,  or  even  hint, 
tliut  the  jury  are  in  no  sense  judges  of  the  law.  If  to  judge  the 
liiw  and  to  follow  the  charge  be  incompatible,  that  is,  if  to  accept 
the  law  as  registered  in  the  charge,  be  a  surrender  of  the  right  to 
judge  of  it,  then  the  theory  that  the  charge  is  binding  nmst  be 
abandoned,  for  the  statute  expressly  declares  that  the  jury  shall 
bo  judges  of  the  law  as  well  as  of  the  fact:  Code,  section  4040. 
If  we  must  give  up  one  or  otlier  of  the  two  things,  it  is  in  vain 
to  hesitate  ;  the  right  to  judge  must  be  preserved,  and  the  duty 
of  conforming  to  the  charge  be  no  longer  exacted.  We  have 
seen,  however,  that  the  two  branches  of  the  rule  are  believed  to 
be  reconcilable;  thnt  is,  that  the  jury  may  be  judges  of  the  law 
without  having  the  I'ight  to  contradict  the  court  or  to  reject 
"hat  is  delivei'ed  as  law  from  the  bench.  No  tribunal  whatever 
IS  at  liberty  to  refuse  to  recognize  as  law  what  comes  to  it  duly 
vouched  as  such  by  the  highest  instrumentality  appointed  by  the 
law  to  give  it  assurance.  If  otherwise,  a  court,  in  judging  of  the 
law  contair  d  in  the  constitution  of  the  United  States,  might 
deny  the  contents  to  be  law,  instead  of  merely  finding  out  the 
true  moaning  of  the  instrument  and  applying  that  meaning  to 
the  case  in  hand. 

2.  In  till'  l(jrogoing  presentation  of  the  relative  functions  of 
judge  and  jury,  the  subject  has  been  contemplated  in  its  widest 
range,  as  embracing  an  entire  case ;  but  the  like  principle  of 
sepii ration  between  the  province  of  the  judge  and  that  of  the 
jury  is  to  be  observed  in  dealing  with  any  given  subdivision  of 
the  case.  Thus,  an  essential  part  of  the  offense  before  us  is  the 
custiidy  alleged  to  have  been  violated.  Was  it  a  legal  or  an 
illegal  custody  ?  ilow  are  the  two  classes  to  be  distinguished  ? 
Vol.  H.— 4 


m ' 


1  I 


til 


50 


AMERICAN  CRIMINAL  REPO  vTS. 


i 


By  certain  variations  in  the  attendant  circumstances.  "Wliat 
circumstances  will  hring  this  particular  custody  within  tlie 
class  le.?al,  and  what  will  bring  it  within  the  class  illogal,  are 
questions  of  law;  hut  the  actual  presence  cv  absence  of 
one  set  of  circumstances  or  the  other,  in  the  particular 
instance,  is  matter  of  fact.  Legal  custody  or  illegal  custody  is, 
therefore,  a  conclusion  consisting  of  law  and  fact  blended  ;  just 
as  guilty  or  not  guilty  is  a  conclusion  cojuposed  of  the  like 
elements.  As  both  conclusions  are  of  the  same  nature,  the  pro- 
cesses of  arriving  at  them  are  similar.  The  law  element  is  the 
material  for  the  major  premis.  in  a  special  syllogism  touching 
custody,  and  is  to  be  supplied  by  the  judge.  The  jury  are  to  col- 
lect from  the  evidence  the  minor  premise,  compare  the  two,  and 
draw  the  conclusion  of  legal  custod}'  or  illegal  custody.  As  the 
judge  can  decide  no  question  of  fact,  he  is  not  ])ermitted  to 
declare  whether  the  particular  custody  disclosed  by  the  c\idence 
belongs  to  the  one  class  or  to  the  other.  Tie,  as  the  organ  of 
law,  can  carry  his  voice  no  farther  than  the  law  goes.  Tfe  can 
say,  as  the  law  docs,  that  such  and  such  custody  is  legal,  and 
mox  and  such  illegal;  but  he  cannot  say  that  this  ])articular  cus- 
tody was  such  or  such,  for  that  depends  not  on  the  law,  but  on 
the  evidence.  Of  course,  too,  the  bare  fact  of  whether  there  was 
any  custody  at  all,  is,  also,  for  the  jury,  unless  It  is  admitted. 

3-8.  The  remaining  points  are  distinctly  ruled  in  the  head- 
notes,  and  will  be  fully  understood  when  read  in  the  light  of  the 
reporter's  statement. 

Judgment  reversed. 


Note.— For  a  very  tliouplitf  ul  and  satisfactory  discussion  of  how  far  the  jury, 
in  a  ciiminnl  case,  are  to  l)e  considered  judges  of  tlic  law,  soe  Hamilton  v. 
l^^ph,  29  Micli.,  on  p.  ISO. 

In  Ihimiltou  v.  People,  !.M)  Mich.,  170,  the  trial  judge  had  been  requested  to 
charuc  tiiat  tlie  jury  were  "  paramount  judges,  bolli  of  tho  hnv  and  tli«3  fiicts," 
on  crliuinul  trials  for  felony.  This  instruction  was  lield  properly  refused. 
The  Supreme  Court  decides  substantially  that  the  jury  are  Ixiiuid  to  aecep 
and  act  upon  the  law  as  laid  down  by  the  court,  "  unless  they  shouM  receive 
such  lyrnnnieal  and  perverse  instructions  as  their  good  senso  should  teach 
theui  could  not  possibly  bo  true  or  just."  The  inlinuition  of  the  ciMirt  is  tha< 
in  such  a  case  the  jury  would  be  morally,  if  not  legally,  juitilled  in  dinregard- 
ing  the  instructions, 

In  Com.  V.  Porter,  10  IMctc.  (Mass,).  203,  this  matter  received  a  vitv  cxhaus- 
tlve  consideration,  and  all  the  authorities  may  bo  found  collected  in  the  report 
of  that  case.  The  opinion  of  (lie  court  was  delivered  by  C.  J.  8haw.  It  was 
held  to  be  the  duty  of  the  jury  to  act  upon  the  law  us  given  them  by  the  court, 


STATE  V.  SLY. 


51 


and  this  without  any  qualification  wliatevcr.  But  it  was  also  held  that  coun- 
sel for  the  defendant  liad  a  right  to  argue  the  law  to  tlie  jury,  and  the  convic- 
tion was  reversed  liecause  tlie  trial  court  had  denied  counsel  for  the  respon- 
dent this  privilege.  The  two  rulings  seem  inconsistent.  It  is  diillcult  to 
(loneeive  what  benefit  it  can  he  to  the  respondent  that  his  counsel  should  be 
allowed  to  argue  tlu!  law  to  the  jury,  if  they  are  to  pjiy  uo  regard  to  the  arg\i- 
mcnt,  even  though  it  should  succeed  in  convincing  their  minds. 

Tlie  constitution  of  Alaryland  provides  that  "  in  the  trial  of  criminal  cases 
the  jury  shall  be  judges  of  law  as  well  as  of  fact."  It  is  field  that  this  pro- 
vision docs  not  permit  a  jury  to  consider  the  constitutionality  of  a  law,  and, 
therefore,  that  the  court  properly  prevented  counsel  from  addressing  a  jury 
on  that  question:     FnniMin  v.  Stale,  12  Md.,  236. 

In  the  United  States  courts  the  doctrine  that  the  jury  must  take  the  law 
from  tlie  court,  in  criminal  cases,  is  well  settled:  U.  S.  v.  Battiale,  2  Sumner, 
240;  U.  8.  c.  Morris,  1  Curtis  C.  C.  H.,  23;  U.  S.  v.  Riley,  5  Blatchf.,  204 

The  general  question  is  very  elaborately  and  exhaustively  considered  in 
rierec  r.  Stafr,  13  N.  II.,  .'530,  and  here  also  the  conclusion  is  reached  that 
altliough  the  jury  in  criminal  cases  have  the  power  to  disregard  the  charge 
of  the  eouit,  it  is,  nevertheless,  tl'.cir  duty  to  receive  it  as  law. 

In  Indiana  it  was  said  that  in  criminal  cases  the  jury  are  judges  of  the  law 
and  the  fact,  but  it  is  their  duty  'o  believe  the  law  as  laid  down  by  the  court: 
Carter  V.  State,  2  Ind. .  (117.  Hut  in  a  later  case  this  doctrine  was  rejected, 
and  it  was  Md  that  counsel  had  a  right  to  argue  questions  of  law  to  the  jury, 
and  that  the  jury  should  judge  of  the  constitutionality  of  a  law  as  well  as  of 
any  oilier  leiral  iiuestion  involved  in  the  issue:    Lynvh  v.  iitate,  9  Ind.,  541, 

Through  all  the  niKes  which  deny  the  right  of  the  jury  to  determine  the 
law  in  criminal  casjs,  there  seems  to  run  a  tacit  concession  that  an  occasion 
might  arise  in  which  it  would  be  proper  for  a  jury  to  disregard  the  law  as 
laid  down  by  the  court. 

It  may  be  conqiared  to  the  right  of  rebellion.  It  can  never  be  called  a  legal 
right,  but  rests  upon  considerations  of  natural  justice,  which  sometimeB  do, 
and  ought  to,  override  munieipal  law.  It  is  a  sort  of  revolutionary  right, 
never  to  Ik;  exercised  except  in  extreme  cases,  and  then  only  wb'^n  it  ia  the 
only  practicable  mode  of  securing  Justice. 


i 


State  v.  Sly. 

(4  OiiKG.,  277.) 

PiiArTirp,;    Auferfois  eonviet  —  Jnrvtdirtfon. 

The  circuit  court  has  jurisdiction  of  tin  ^rime  of  assault  and  battery. 

A  coiivletlon  under  a  city  ordinance  I'or  "disturbing  llie  peace,"  or  for 
"lighting  ill  the  streets,"  cannot  bn  pleaded  in  Imr  to  an  indictment  In 
the  circuit  ciiurt  for  the  assault  and  balleiy  committed  at  the  same  time. 
The  two  olTeiises  are  not  identical. 

Ai'iMvVi.  from  JiK'kKim  fouiity. 

Oil  Dt'coiiiher  20ih,  1870,  Tlioiims  Sly  wns  tried  rttid  convicted 


52 


AMERICAN  CRIMINAL  REPORTS. 


before  the  recorder  of  Jacksonville,  for  the  offense  of  disturbing- 
the  peace,  by  fighting  one  John  Felling  in  the  public  street,  iu 
violation  of  a  certain  duly  ado])ted  ordinance  of  said  city.  Ho 
was  lined  ten  dollars,  which  fine,  together  with  the  costs,  he  paid. 
Afterwards,  at  the  November  term  of  the  circuit  court  of  the 
state  of  Oregon  for  the  county  of  Jackson,  he  was  indicted  for 
an  assault  and  battery — the  indictment  charging  that  on  Decem- 
ber 20th,  1870,  he  did  assault  and  beat  one  John  Felling.  Upon 
this  indictment  he  was  convicted  and  fined  in  the  sum  of  ten 
dollars.     Irom  said  judgment  of  conviction  Sly  appeals. 

B.  F.  Dowell  and  John  Kelmy,  for  appellant. 

J.  R.  Niel,  district  attorney,  and  J.  11.  Stmson,  for  respondent. 


By  the  court,  McArtiiur,  J. : 

The  question  as  to  the  jurisdiction  of  the  circuit  courts  over 
the  crime  of  assault  and  battery  must,  we  think,  be  answered  in 
the  atHrmative.  Section  537  of  the  criminal  code  which  took 
effect  from  and  after  May  1st,  1805,  made  the  crime  of  assault 
and  battery  indictable  in  the  circuit  courts,  aiid  punishable  by 
imprisonment  in  the  county  jail  not  less  than  three  montlis,  nor 
more  than  one  year,  or  by  fine  not  less  than  lifty  nor  moi'c  than 
five  hundred  dollars:  !>.,  §2,  subd.  2  (code  of  procedure  in 
justices'  courts,  eh.  1,  §2)  of  the  act  regulating  the  civil  and 
criminal  procedure  in  justices'  courts,  which  act  went  into  opera- 
tion May  1st,  1805,  jurisdiction  of  the  crime  of  assault  and 
battery,  not  charged  to  have  been  committed  with  intent  to  com- 
mit a  felony,  was  also  given  to  the  justices'  courts.  The  juris- 
diction was,  therefore,  concurrent  in  all  cases  of  assault  and 
battery  not  charged  to  have  been  committed  with  intent  to  com- 
mit a  felony.  The  sixth  subdivision  of  the  section  last  referred 
to,  as  amended  in  1805,  provided  that  in  case  of  assaid.,  and 
assault  and  battery,  over  which  a  justice's  court  hud  jurisdiction, 
the  punishment  should  be  by  line  of  not  less  than  five  nor  more 
than  fifty  dollars.  This  amendment  dties  not  deprive  the  circuit 
courts  of  jurisdiction  in  this  class  of  cases. 

By  virtue  of  the  act  of  the  legislature,  incorporating  Jackson- 
ville, the  common  council  was  i-  sted  witli  the  power  to  pass 
and  enforce  ordinances  punishinj;  .my  and  all  parties  who  might 
disturb  the  peace  by  iigliting  in  the  streets,  and  we  are  of  opinion 
that  the  judgment  of  conviction  of  the  offense  of  lii>litinir  in  tho 
Btreets,  or  disturbing  tho  peace,  pronounced  hy  the   recorder 


'■i 
'0 


I 


STATE  V.  SLY. 


53 


under  a  city  ordinance,  cannot  be  pleaded  in  bar  to  an  indictment 
in  the  circuit  coiirt,  for  the  assault  and  battery  committed  at  the 
same  time,  for  the  reason,  that  before  a  defendant  can  avail  him- 
sfclf  r»f  the  plea  of  autrefois  convict,  he  must  show  the  identity 
of  the  offense  and  of  the  person  (1  Chitty's  Crin».  Law,  402 ; 

Wif/<on  V.  State,  24  Conn.,  57 ;  Duncan  v.  Coniinonwealth, 
G  Dana  (Ky.),  205;  Commomoealth  v.  Wade,  12  Tick.,  496; 
4  IJiack.  Com.,  33G).  The  crimes,  to  be  identical,  must  be  the 
same  i"  law  and  in  fact  {CominonweaWi  v.  liohj,  12  Pick.,  502; 
Commonwealth  v.  Biihser,  14  Gray,  84).  The  offenses  above 
referred  to  are  not  identical.  The  one  is  a  violation  of  a  jjolice 
regulation  of  the  municipality,  the  other  a  violation  of  the 
criminal  code  of  the  state.  Though  the  recorder  of  Jacksonville 
is  ex  officio  a  justice  of  the  peace,  and  might  have  proceeded 
under  the  state  law  to  punish  the  appellant  for  the  crime  of 
assault  and  battery,  yet  it  very  plainly  appears  that  he  did  not. 
He  saw  fit  only  to  exert  his  authority  as  recorder,  and  to  punish 
him  solely  for  the  infraction  of  the  city  ordinance.  Conceding, 
however,  that  the  offenses  are  identical,  that  fact  cannot  in  this 
case  avail  the  appellant,  for  we  deem  the  correct  view  of  the 
subject  to  be  that  taken  by  the  court  in  Shafer  v.  Jfiwima,  17 
Md.,  331,  wherein  it  was  held  that  the  imposition  of  a  line  by 
the  mayor  of  a  city  in  the  exercise  of  his  police  power,  will  not 
relieve  the  offender  from  liability  to  the  state.  And  this  is 
analogous  to  the  well  settled  doctrine  which  holds  an  offender 
liable  to  be  doubly  punished,  by  the  United  States  and  by  a 
single  state,  for  an  act  violative  of  both  a  law  of  congress  and  a 
state  law  {Fo,v  v.  Ohio,  5  IIow.  IJ.  S.,  410;  Moore  v.  Illinois, 
14  How.  U.  S.,  13;  Levi/  v.  The  State,  C  Ind.,  281;    Waldo  v. 

Wallace,  12  Ind.,  509;  Gardner  v.  The  Peojyle,  20  111.,  430). 

It  follows  that  the  judgment  of   the  court  below  must  be 
affirmed. 

Judgment  affirmed. 


:jf; 


NoTR. — "Wlmt  ofTcnsc'R  must  bo  oonsidorod  tlio  "snmo"  within  tlm  rulo 
tlmt  IK)  iniin  hIuiII  1»(i  twicts  punlHlit'd  or  put  in  joopiirdy  lor  tlid  siiine  olTijnsc, 
iiuisi  still  1)0  ('oiisidcrcd  a  iniitlor  of  considt'iulilc  doubt.  Tliu  tuitlioritics  arc 
cDiitlictiiif;'  Mild  ciiiinDt  be  ircoiicilcd.  Tlio  two  points  on  wliicli  most  dllll- 
<'ulty  occurs  arc  (Iichc  :  1.  Wliotlicr  a  jicrson  who  liii>*  liccii  tried  mid 
ronvictcd  or  iiciiuiltcd  of  any  crime,  may  iiftcrwiirds  lie  tried  fur  a  yrealer 
olTensc,  arising  on  llie  same  facts,  and  of  whicli  tlie  olVeiise  for  wliicli  lie  was 
llist  triud  is  ono  of  tlie  constituent  parts?  a.  Are  till  olVeiises  wliicli  are  prop- 
erly classed  us  breaches  of  the  public  peace,  sucli  as  assaults,  batteries,  atfruys. 


54 


AMEUICAN  CIIIMINAL  REPORTS. 


I 


riots  niid  aanravnted  assaults,  to  be  considered  so  far  similar  that  a  prosecu- 
tion for  any  of  them  shall  bar  a  prosecution  for  any  other  of  them,  founded 
on  the  same  transaellou.  The  state  has  always  the  right,  before  a  final  trial 
is  begun,  to  dismiss  a  i)rosecution  and  put  tlie  accused  on  trial  for  a  higher 
offense.  The  accused  has  no  voice  in  determiuing  for  what  offense  he  shall 
be  tried.  When  the  state  lias  onci'  elected  to  put  the  respondent  on  trial  for 
any  crime,  it  oui^jit  to  be  concluded  by  that  election  to  this  extent  ut  least — 
that  the  accused  .sJiall  uot  be  put  in  jeopardy  ai^ain  for  a  substantially  similar 
offense,  or  for  one  of  which  the  offense  for  which  he  is  firi^t  tried  is  one  of  the 
constituent  parts.  Cases,  however,  where  the  same  act  may  amount  to  two  or 
more  olfenses  distinct  in  their  nature,  and  working  miscliiefs  of  entirely  dif- 
ferent characters,  ought  not  to  be  confounded  with  those  which  fall  within 
the  operation  of  these  rules. 
The  following  are  tlie  principal  American  cases  on  these  points: 
In  S/iite  v.  Cuwan,  29  Mo.,  330,  it  appeared  the  defendant  had  been  con- 
victed of  violating  a  municipal  ordinance  prohibiting  furious  riding  through 
the  streets  and  fined.  He  was  afterwards  indicted  for  the  same  act,  under  a 
state  law  prohibiting  the  running  of  horses  at  great  speed  on  the  public  roads 
and  highways.  To  this  indictment  lie  pleaded  his  former  conviction  under 
the  iiiunicipal  ordinance.  The  slate  demurred  to  the  plea;  the  court  sus- 
tained the  plea,  and,  on  appeal  by  the  state,  the  Supreme  Court  sustaineil  the 
judgment,  and  hdit  the  conviction  under  the  ordinance  a  bar  to  the  prosecu- 
tion of  the  indictment. 

In  Slate  v.  Thontfon,  37  Mo.,  3((0,  it  was  held  that  a  conviction  under  a 
municipal  ordinance  punishing  the  keeping  of  a  bawdy  house,  was  a  bar  to  a 
pr()se(;ution  under  a  state  statute  for  the  same  offense. 

In  Om.  ».  Hai^kins,  tl  Ihisli.  (Ky.),  603,  S.  C,  1  Am.  Crim.  Rep.,  05,  on  an 
indictment  for  an  assault  and  battery,  the  respondent  pleaded  that  he  had 
been  tried,  convicted  and  tlned  for  a  breach  of  the  peace,  and  that  said  con- 
viction was  for  the  identical  facts  charged  in  the  indictment.  On  appeal 
from  an  order  dismissing  the  indictment,  the  facts  alleged  in  the  plea  being 
admitted  to  be  true,  it  was  hM  that  the  plea  was  good,  and  the  former  con- 
viction a  bar  to  the  prosecution  of  the  indictment. 

In  llolt  V.  Slate,  38  Geo.,  187,  to  an  indictment  for  an  aggravated  riot,  the 
respondent  pleaded  a  former  acquittal  of  a  cliarge  of  assault  with  intent  to 
murder,  and  tlie  Identity  of  the  olfenso.  The  plea  was  Md  good  by  the 
Supreme  Court  r<>vorslng  the  decision  of  the  court  below. 

In  State  v.  Stanlt/,  4  Jones  L.  (N.  (!.),  290,  to  an  indictment  for  an  assault 
and  battery,  the  plea  of  a  prior  conviction  of  an  affray,  being  tiie  same  trans- 
action, was  held  good. 

In  Stale  v.  S/upard,  7  Conn,,  fil,  a  conviction  of  an  assault,  with  intent  to 
commit  rape,  was  sought  to  be  revers<'(l,  on  the  ground  Hint  the;  evidence 
showed  that  the  respondent  was  guilty  of  rape,  and  if  the  conviction  was  sus- 
tained the  respondent  might  subse(|uenlly  be  indicted  for  and  convicted  of  the 
rape,  and  llius  be  twice  punished  for  the  same  offense.  Tlie  Supremo  (^ourt 
sustained  the  conviction,  mi  the  ground  that  an  aiqulltal  or  conviction  of 
n.ssault,  with  intent  to  conimil  rape,  was  a  bar  to  an  indielment  for  raiie  oa 
the  same  facts, 

In  (Am.  V.  H..'!,,  12  Pick,.  49(1,  It  is  decided  that  a  conviction  for  an  assault 
with  Intent  to  commit  murder  cannot  be  pleaded  in  bar  of  au  ludictmont  for 
murder  founded  on  the  same  facts. 


i 


In  IT.  S.  r 
for  an  assaul 
the  riot. 

In  Wining 
tion  was  rev 
convicted  of 
Supreme  Co 
prosecutions 
riot  consists 
tiiat  as,sault, 
commission 
conviction  f( 
In  Frcelan 
cution  for  r 
assault  and  1 
laid  down  in 
In  People 
riipe,  the  del 
the  identity 
In  Wilnon 
cannot  Im^  \)\ 
larceny,  fou 
In  People  i 
the  same  coi 
In  Slate  v. 
glaiy  with  ii 
larceny. 

In  Joms  V 
that  au  ac(p 
indictment  t 
In  Slat'-  r. 
religious  nie 
transaction, 
was  /*('/(/  goi 
In  U.  S.  i 
aeipiitlal  be 
cannot  be  p! 
founded  on 
In  If.  S.  t 
ollensi!  of  k 
alion,  is  no 
house,  supp 
In  U.  S. 
seiilence  of 
sentatlves,  i 
the  house,  o 
are  not  a  b 
battery. 

In  Slatfl  0, 
for  eoMleiiii 
indictment 


r 


■Vf 


STATE  V.  SLY. 


56 


In  U.  S.  r.  Penef,  4  Cranch  C.  Ct.,  601,  It  Is  determined  that  a  convictioa 
for  an  assault  and  battery  committed  in  a  riot  will  not  bar  a  prosecution  for 
the  riot. 

In  Wininger  v.  State,  13  Ind.,  540,  a  prosecution  for  a  riot  where  the  convic- 
tion was  reversed  because  It  appeared  tliat  the  respondents  had  aheady  been 
convicted  of  an  assault  and  battery  arising  out  of  the  same  facts  and  tiued,  the 
Supreme  Court  lay  down  the  rule  as  follows:  "We  tliink  the  true  rule  in 
prosecutions  for  offenses  of  this  character  is,  that  where  the  gravamen  of  the 
riot  consists  in  the  comuiissiou  of  an  assault  and  battery,  then  a  conviction  for 
that  assault,  etc.,  would  be  a  bar  to  a  prosecution  for  the  riot;  but  whore  the 
commission  of  an  as.sault  and  battery  was  merely  incidental  to  the  riot,  then  a 
conviction  for  the  one  would  not  bar  a  conviction  for  the  other." 

In  Freeland  v.  People,  16  111. ,  380,  it  was  Md  that  it  was  no  bar  to  a  prose- 
cution for  riot  that  the  accused  had  been  tried,  convicted  and  fined  for  an 
assault  and  battery  arising  out  of  the  same  transaction.  The  same  doctrine  is 
laid  down  in  Scott  v.  U.  S.,  1  Morris  (Iowa),  143. 

In  People  v.  Saunders,  4  Park.  (N.  Y.)  Cr.  Rep.,  196,  to  an  indictment  for 
iiilH',  the  defendant  pleaded  a  conviction  for  an  as.sault  and  battery,  alleging 
the  identity  of  the  ollenses.     The  plea  was  held  bad. 

In  Wilnon  i\  Sidle,  24  Conn.,  57,  it  is  decided  that  a  conviction  for  larceny 
cannot  be  i^lcnded  in  bar  of  an  indictment  for  burglary  with  intent  to  commit 
liirceny,  founded  on  the  same  transaction. 

In  People  o.  MeVloitken,  5  I'ark.  Cr.  Uep.  (N.  Y.),  on  precisely  similar  facts, 
the  same  conclusion  was  reachud. 

In  Slate  v.  Warner,  it  was  heUl  that  an  acquittal  upon  an  indictment  for  bur- 
gluiy  with  intent  to  commit  a  larceny,  does  not  embrace  an  accjuitlal  of  the 
larceny. 

In  Jones  v.  State,  55  Geo.,  tl'25,  S.  C,  1  Am.  Crim.  Hep.,  570,  it  is  decided 
that  an  acquittal  of  a  charge  of  sinq)le  larceny  may  be  pleaded  in  bar  of  aa 
indictment  for  burglary,  founded  on  tlie  same  transaction. 

In  Slitti'  i\  Tmcnxend,  2  llarr.  (Del.),  543,  on  an  indictment  for  disturbing  a 
rc^iigiou.s  meeting,  a  ph^a  of  former  conviction  of  a  riot  arising  out  of  the  same 
transaction,  the  riot  having  occurred  in  a  meeting-house,  and  during  worship, 
was  lu.hl  good. 

In  U.  S.  IK  I'dx/dil,  1  Hughes  C.  Ct,  Rep.,  552,  it  was  determined  that  an 
acquillal  liefori!  a  court-martial,  charging  a  violation  of  the  articles  of  wtu', 
cannot  be  pleaded  in  bar  of  an  indictment  based  on  a  United  States  statute, 
founded  on  the  same  transatilion. 

In  If.  S.  V.  Hood,  2  Cranch  C.  Ct.,  133,  it  is  decided  that  a  conviction  of  the 
oU'ense  of  lu'eping  a  i'aro-bank,  contrary  to  a  by-law  of  a  municipal  corpor- 
ation, is  no  bar  to  an  indictment  at  coniinou  law  for  licepiug  a  disorderly 
house,  supported  hy  the  same  evidence. 

In  U.  S.  n.  lloiiKtui),  4  Cranch  C.  Ct.,  it  is  decided  that  a  conviction  and 
sentence  of  an  individiud,  not  a  nu'inber  of  congress,  by  the  house  of  repre- 
t>entatlves,  for  a  breach  of  privilege  by  assault  and  battery  upon  a  member  of 
the  liou,sc,  on  account  of  words  spoken  by  the  meiulier  in  the  house  in  debate, 
are  not  a  bar  to  a  criminal  prosecution,  l)y  indicdnenl,  for  the  assault  and 
buttery. 

In  .s'/fiM  e.  Yani'i)i,  I  Law  l{i'p.  (N.  C, ),  519,  it  is  decided  that  a  fine  inflicted 
for  coiileuipt  of  court,  in  conunilting  a  battery  lu  its  prciseuuu,  iu  uo  bur  to  uu 
indielmunl  for  the  same  assault  and  battery. 


!    ! 


t 


<     41 


56 


AMERICAN  CRIMINAL  REPORTS. 


In  State,  r.  RanMn.  A  Caldw.  (Tcnn.),  140,  to  an  inaictiuent  for  murder,  \\\c. 
respondent,  an  nrniy  officer,  pleaded  a  former  acquiltul  by  a  court-martial. 
Tlie  slate  traversed  the  plea,  and  on  a  trial  of  this  issue  by  a  jury  a  verdict 
was  rendered  lor  the  respondent.  On  ai)peal  by  the  state  the  Supreme  Conn 
reversed  the  judgment  of  aeyuittal,  holding  that  the  plea  was  bad,  and 
directed  that  the  respondent  be  required  to  plead  anew  to  the  indictment. 


Shannon  i\  State. 
(57  Geo.,  483.) 

Evidence:    Siiffideney  of  Proof — Kiw  trial  denied  by  judge  who  did  not 

try  the  mxc. 

The  evidence  in  this  case  being  purely  circinnstantial  (consisting  principally 
of  a  similarity  between  the  tracks  found  near  the  scene  of  the  arson  and 
those  of  prisoner  subseciuently  measured),  slight  in  its  nature,  and  not 
inconsistent  with  the  innocence  of  the  defendant,  a  new  trial  should  have 
been  granted. 

Where  a  motion  for  a  new  trial  is  overruled  by  a  different  judge  from  the  one 
wl'.o  presided  at  the  trial,  the  weight  of  the  opinion  of  the  latter  in  sup- 
port of  the  verdict  is  wanting. 

The  following,  taken  in  connection  with  the  decision,  sufti- 
ciently  reports  this  case :  The  evidence  for  the  state  showed 
that  tl)e  tracks  found  near  the  scene  of  the  arson  appeared  as  if 
the  right  shoe  was  run  down — prisoner's  right  shoe  was  slightly 
run  down ;  also,  that  prosecutor  and  prisoner  had  an  altercation 
the  day  before  the  tire,  in  the  course  of  which  the  former  cursed 
the  latter. 

Two  witnesses  for  the  defense  swore  that  they  stayed  at  pris- 
oner's house  the  night  of  the  alleged  arson ;  that  he  ciiine  home 
ahout  eleven  )•.  m.  and  went  to  bed ;  that  they  were  awakened 
about  one  or  two  a.  m.  by  an  idarin  c ".  lire,  and  that  prisoner  was 
apparently  asleep ;  that  the  distauc  from  prisoner's  house  to  the 
scene  of  the  arson  was  al)ont  three  hundretl  yards. 

The  case  was  tried  before  .Judge  McCutcheon ;  the  motion  for 
new  trial  was  heard  by  Judge  Hid). 

J.  A.  JIunt,  J.  S.  Plnkard,  W.  D.  IStoiie,  for  the  plaintiff  in 
error. 

Hauniiond  i£'  Hornet',  for  the  state. 

Waunkk,  Chfrf  Justice: 

The  defendant  was  iiulicted  for  the  (.(Tense  of  "setting  fire  to 
a  house  in  town,"  and  on  the  trial  tiierefor  was  found  guilty  by 


SHANNON  V.  STATE. 


57 


the  jury,  with  a  recommendation  that  he  be  imprisoned  for  life. 
A  motion  was  made  for  a  new  trial,  on  the  ground  that  the  ver- 
dict was  contrary  to  law,  contrary  to  the  evidence,  and  without 
evidence  to  stipj^ort  it,  which  motion  was  overruled  by  the  court, 
and  the  defendant  exce])tcd. 

1.  The  main  evidence  relied  on  to  connect  the  defendiint  with 
the  offense  charged,  was  the  fact  that  certain  tracks  were  discov- 
ered near  the  house  set  on  fire,  the  next  morning  thereafter, 
which  were  measured  but  not  identified  as  the  tracks  of  any  par- 
ticular individual.  A  day  or  two  afterwards  the  defendant's 
tracks,  as  he  made  them  in  a  public  street,  were  measured,  and 
the  size  thereof  compared  with  the  tracks  found  near  the  house 
set  (til  fire.  There  were  some  other  slight  circumstances  offered 
in  evidence  to  slu)w  the  defendant  might  be  guilty  of  the  offense 
charged,  not,  however,  inconsistent  with  his  innocence,  but 
unless  the  tracks  found  near  the  house  set  on  fire  the  next  morn- 
ing thereafter  were  made  by  the  defendant  the  verdict  cannot  be 
sustained.  How  is  that  fact  sought  to  be  established?  It  is 
sought  to  be  established  by  a  comjjarison  of  the  size  of  the  tracks 
found  near  the  house  set  on  fire  with  the  size  of  the  tracks  made 
by  the  defendant  in  a  public  street  a  day  or  two  afterwards. 
The  prosecutor,  who  measured  the  tracks  found  near  the  house, 
states  that  each  one  measured  eleven  inches  in  length  from  he?! 
to  toe,  and  three  and  one-fourth  in  width  across  the  broadest 
part  of  it ;  that  he  measured  the  impression  on  the  ground  made 
by  tlie  sole  only,  both  length  and  width.  A  witness  who  meas- 
ured defendant's  track  states  that  it  measured  ten  and  three- 
<juarter  inches  long,  and  between  three  and  one-"ighth  and  three 
and  one-quarter  inches  wide ;  measured  his  shoes  ten  and  a  half 
inches  long  and  three  and  one-quarter  inches  across. 

The  defendant  nuvy  be  guilty,  but  there  is  not  sufficient  evi- 
dence to  authorize  his  conviction  under  the  law,  for  it  will  not 
do  to  find  a  defendant  guilty  of  an  offense,  and  imprison  him  for 
lite,  on  .suxpicion  that  he  is  guilty.  Tliis  case  comes  within  the 
rilling  of  this  court  in  McDan'ui  v.  The  /State,  53  Georgia 
Ucports,  2'^'.h  and  J'ai/'J)  v.  The  State,  60  IMil,  513. 

2.  Besides,  in  this  case,  the  tnotion  for  a  new  trial  was  not 
overruled  by  the  judge  who  presided  at  the  trial,  so  that  we  have 
not  the  weight  of  the  opinion  of  the  judge  who  did  preside  at 
the  trial  in  favor  of  the  verdict. 

Let  the  judgment  of  the  court  below  be  reversed* 


w 


•  '■■'• 


1:1  m 


.il 


m 


AMERICAN  CRIMINAL  REPORTS. 


Note  -It  has  been  determined  by  the  Supreme  Court  of  Michi-an,  in  a. 
number  of  cases  which  will  be  reported  in  40  Mich.,  that  where  the  trial 
judge  dies  or  ceases  to  hold  bis  oflice,  parties  who  had  a  right  to  apply  to  him 
for  a  new  trial,  or  who  had  motions  for  a  uew  trial  pending  before  him  at  the 
time  of  his  death  or  removal,  had  au  ubsolule  right  lo  a  new  trial.  These 
decisions  proceed  upon  the  ground  that  only  the  judge  who  tried  the  case 
can  properly  decide  a  motion  for  a  new  trial  where  the  application  is  to  the 
discretion  of  the  court,  and  that  parties  cannot,  without  fault  or  laches  oa 
their  own  part,  be  deprived  of  their  appeal  to  this  discretion. 


PiATE  V.  Carson. 

(66  Me.,  116.) 

Evtdencb:    Cross-examinatMn  of  respondent. 

■Where  the  prisoner  was  on  trial  for  the  murder  of  one  Brawn,  and  a  witness  in 
his  own  behalf;  lield,  that  on  cross-examination  it  was  not  competent  for 
the  attorney  for  the  state  to  ask  him,  against  objcclion,  "  Did  you  assault 
Mr.  Farrer  on  the  Calais  road,  while  drunk?"  and  similar  questions  as  to 
assaults  upon  other  parties  while  drunk,  the  matter  not  being  relevant  to 
his  credibility  as  a  witness,  or  competent  as  substantive  evidence. 

On  ExcEinioNS.  Indictment.  The  prisoner  was  tried  for  the 
uUeirod  murder  of  Brawn  on  board  a  boat  at  Milford,  on  the 
Penobscot  river,  on  the  IGth  day  of  July,  1874;  and  upon  the 
trial  the  counsel  for  the  defense  contended  that  tlie  parties  Car- 
son and  Brawn  were  intoxicated  at  tlie  time. 

The  pi'isoner  was  put  upon  the  stand  as  a  witness,  and  in  th6 
course  of  tlie  cross-e.xamination  the  followinj?  questions,  against 
the  olijection  of  the  prisoner's  counsel,  were  allowed  to  be  asked 
upon  matters  not  inquired  of  in  chief,  and  answers  given  : 

Q.  Did  you  assault  Mr.  Farrer  on  the  Calais  road,  while 
drunk  ? 

A.  I  do  not  remember  making  any  assault  on  any  body  only 
in  self-defeJise. 

Q.    Did  you  stab  your  brother  "William,  while  drunk? 

A.     I  don't  remember. 

Q.  Don't  you  remember  whether  you  stabbed  your  brother 
William  three  or  four  tunes,  while  drunk? 

A.     No,  sir. 

Q.     "NVill  you  suy  that  you  did  not? 

A.     T  do,  sir. 


riMl 


STATE  V.  CARSON. 


59 


Q.  Did  you  assault  Mr.  Fiske,  of  Exeter,  the  hotel-keeper, 
while  drunk  ? 

A.    ^'^o,  sir;  not  that  I  remember  of,  till  he  assaulted  me  once. 

Q.     Did  you  assault  an  old  man  there  in  Exeter,  while  drunk  ? 

A.    No,  sir;  never. 

Q.  Did  you  assault  Thomas  Jordan  and  Andrew  Phnifer, 
with  a  pistol,  while  drunk  ? 

A.  I  presume  that  they  assaulted  me,  and  I  took  their  pistol 
away,  and  gave  them  what  folks  in  Oldtown  and  Milford  said 
they  deserved. 

Q.  Did  you  assault  Henry  Wadleigh,  in  Oldtown,  while 
drunk  ? 

A.  I  never  assaulted  him  any  further  than  an  agreement  was 
made  between  us. 

The  verdict  was  guilty;  and  the  prisoner's  counsel  alleged 
exceptions. 

A.  Knowles,  for  the  prisoner. 

R.  M.  Plaisted,  attorney-general,  for  the  state. 

LiBBEY,  J. :  The  prisoner  was  on  trial  for  the  murder  of  one 
Brawn.  He  was  a  witness  in  his  own  behalf.  In  his  defense  ho 
had  not  put  in  evidence  his  previous  good  character.  On  cross- 
examination  the  counsel  for  tlio  govormuent  was  ])erniitted, 
against  objection  duly  taken,  to  ask  him  the  following  (inestions: 
" Did  you  assault  Mr.  Farrer  on  the  Calais  road,  wliile  drunk?" 
Similar  questions  were  allowed  to  be  put  to  the  witness,  against 
objection,  as  to  assaults  on  several  other  persons,  at  d liferent 
times  and  places,  while  drunk.  These  matters  had  not  been 
gone  into  in  the  examination  in  chief.  Was  this  line  of  exami- 
nation legally  i)ermissible  ?  It  must  have  been  admitted  for  one 
of  two  purposes :  either  as  effecting  the  credibility  of  the  wit- 
ness, or  as  tending  to  prove  the  crime  alleged.  A  party  to  a  suit 
may  be  a  witnes.s.  If  a  witness,  his  examination  must  be  con- 
ducted under  the  same  rules  that  are  applicable  to  the  exainina- 
tiou  of  any  other  witness.  To  impeach  his  credibility,  it  is  not 
competent  to  prove  by  other  witnesses  that  he  has  committed 
other  crimes  than  the  one  with  which  he  is  charged  ;  nor  is  it 
competent  to  do  the  same  thing  by  cross-examination.  The 
pro])er  line  of  cross-examination  does  not  extend  so  far  as  to 
authorize,  in  that  way,  the  introduction  of  incompetent  evidence. 
The  witness  must  be  prepared  to  vindicate  his  genei-al  character 


1 

w  - 

,s 

fl 

• 

1    ; 

1 
1    'i 

m  ■'' 

1  ^*:i 

m 


AMERICAN  CKIMIXAL  REPORTS. 


-r' 


for  truth,  and  to  irioot  tlie  proper  evidence  of  a  prior  conviction 
of  an  infaiMoiis  crime.  Tliesc  are  matters  propcrlv  at  issue.  But 
lie  cannot  be  required  to  be  prepared  to  vindicate  liiiiiself  iiyainst 
any  alleged  crime  that  may  he  insinuated  in  the  form  of  cross- 
examination,  and  of  wliich  ho  liis  no  previous  notice.  We  think 
these  principles  well  settled  by  the  authorities.  The  evidence 
was  incompetent  for  the  purpose  of  impeaching  the  credibility  of 
the  witness.  The  subject  is  carefully  considered  and  determined 
in  Ifolhrook  v.  Dow,  12  Gray,  357. 

Nor  was  the  evidence  competent  as  tending  to  prove  the  crijiic 
for  wliich  the  prisoner  was  on  trial.  The  fact  that  he  had  made 
a  violent  assault  on  another  person,  at  a  different  time  and  under 
different  circumstances,  could  have  no  legitimate  effect  to  prove 
him  guilty  of  the  fatal  assault  upon  Brawn.  In  Commonioealth 
r.  Thrasher,  11  Gray,  450,  the  court  states  the  rule  as  follows : 
'*  As  a  general  rule  in  criminal  trials,  it  is  not  competent  for  the 
])rosecution  to  give  evidence  of  facts  tending  to  prove  another 
distinct  offense,  for  the  purpose  of  raising  an  inference  of  the 
]»risoner'8  guilt  of  the  particular  act  charged.  The  exceptions 
are  cases  where  such  evidence  of  other  acts  has  some  connection 
with  the  fact  to  be  found  by  the  jury,  where  su(!h  other  fact  is 
e^SL-ntial  to  the  chain  of  facts  necessary  to  make  out  the  case,  or 
where  it  tends  to  establish  the  identity  of  the  party,  or  i)roximity 
of  the  jjerson  at  the  time  of  the  alleged  act,  or  the  more  familiar 
case,  where  guilty  knowledge  is  to  be  shown  or  some  particular 
(!riniinal  intent.  Unless  it  be  made  material  for  some  such 
reasons  as  we  have  stated,  evidence  of  the  substantive  offenses  of 
the  like  kind  ought  not  to  go  to  the  jury." 

The  case  at  bar  does  not  fall  within  any  exception  to  the  gen- 
eral rule.  We  think  the  court  erred  in  allowing  the  questions  to 
be  »<ut  to  the  witness. 

Exceptions  sustained. 

DiuKEBSON,  Danfoetii,  Yirgin  and  Peters,  JJ.,  concurred. 

Note.— The  practice,  under  recent  statutes,  of  allowing  defendants  in  crim- 
inal cases  to  give  evidence  in  their  own  behalf,  has  given  rise  to  a  number  of 
questions  on  which  the  aullioritios  are  by  no  means  uniform.  The  following 
are  tlie  most  important  decisions  on  these  statutes: 

In  McOarrti  v.  People,  2  Lans.  (N.  Y.),  227,  State  v.  Oher.  .TO  N.  II.,  459, 
Com.  V.  Mu/lcnn,  97  .Mass.,  54."),  Com.  v.  Morgan,  107  Mass.,  199,  S/ote  i\  Went- 
worth,  05  Me.,  234,  State  v.  Fan,  4:t  kwa,  651,  and  State  i\  Huff.  11  Nov.,  17, 
it  was  lield,  that  tlie  cross-e,\amiuauon  of  the  defeudaut  was  not  liudled  to  the 


matters  concer 
pelled  to  answc 

In  Brandon  i 
ou  trial  for  lai 
arrested  befori' 

In  People  r. 
pel  a  dcfcudan 
of  certain  ofTc 
ground  tliat  tlu 
ncr,  97  Mass. 

In  Cooley's  ( 
defendant  in  a 
uiiy  point  he  c 
which  he  decli 
stances,  they  tl 
and  overruled 
ligainst  being  c 
l)ccomes  a  snar 
vides  simply  tl 
make  a  slatemc 
siicli  statement 
should  not  be  i 
answer  any  qu 
on  such  a  state 
9  Mich.,  221. 
allow  questions 
had  been  arrest 
decline  to  ansv 


i!]vrDENCE :      0 


The  good  repu 
never  heai 
and  the  fa( 
excellent  < 
cliariictcr  i 

The  accused  lu 
traits  invo 
what  it  is  i 

T?KRRY,  J. 

a    rape.      IP 
among  other 


.3 

'4 


,J5 

a 


STATE  V.  LEE. 


61 


matters  concprnJng  which  he  had  testified  in  oliicf,  but  that  he  misht  be  com- 
pelled to  answer,  on  cross-examination  as  to  any  matter  pertinent  to  the  issue. 

In  UrainUni  v.  People,  4'-2  N.  Y.,  205,  it  was  held  that  the  defendant,  who  was 
ou  trial  for  larceny,  mii^ht  be  asked  this  question:  "Have  you  ever  l)eeu 
iirrested  before  for  theft  ?"  althou.i,di  she  had  not  put  her  character  in  issue. 

In  Pfi'ith-  r.  Ili'inh/irf,  30  Cal. ,  449,  it  was  Ji^ld  that  it  was  not  error  to  com- 
pel a  defendant  to  answer  as  to  whether  he  had  not  been  previously  convicted 
of  certain  offenses,  tin;  objection  to  the;  questions  not  being  based  on  the 
ground  that  the  reconis  of  conviction  were  the  best  evidence.  Com.  v.  3)n- 
Iter,  97  Mass.,  587,  is  to  the  same  effect. 

In  Cooley's  Constitutional  Limitations,  on  p.  317,  it  is  laid  down  that  if  a 
defendant  in  a  criminal  ca.se  chooses  to  testify,  "he  is  at  liberty  to  stop  at 
iiny  point  he  chooses,  and  it  must  he  left  to  the  jury  to  give  a  statement, 
which  he  declines  to  make  a  full  one,  such  weight  as,  under  the  circum- 
stances, they  think  it  entitled  to;  otherwise  the  statute  must  have  set  aside 
and  overruled  the  constitutional  maxim  which  protects  an  accused  party 
ii^ainst  being  compelled  to  testify  against  himself,  and  the  statutory  privilege 
liucomes  a  snare  and  a  danger."  The  Michigan  statute  is  peculiar,  and  pro- 
vides simply  that  any  defendant  in  a  criminal  case  "shall  be  at  liberty  to 
make  a  statement  to  the  court  or  jury,  and  may  be  cross-exauuued  on  any 
such  statement."  Under  this  statute  it  has  been  held:  1.  That  the  statement 
sliould  not  be  under  oath.  2.  That  the  respondent  coidd  not  be  compelled  to 
iiuswer  any  question  on  cross-examination;  and,  3.  That  a  cross-examination 
on  such  a  statement  would  not  be  allowed  to  go  beyond  it:  People  v.  Tftonuis, 
9  Mich.,  221.  And  in  Gale  v.  People,  20  ilich.,  159,  it  was  held  to  be  error  to 
allow  questions  to  be  put  to  the  defendant  as  to  whether,  at  various  times,  he 
had  been  arrested  and  in  jail,  although  the  court  informed  him  that  he  might 
decline  to  answer  such  questions  if  he  saw  fit. 


State  v.  Lee. 

(22  Minn.,  407.) 

■iilviDENCE:    Oood  rep^ifnffon  ;  what  testimonj/  is  competent  —  BigM  to  prove 
characlcr  from  personal  acquaintance. 

The  good  reputation  of  the  accused  may  be  proved  by  witnesses  who  have 
never  heard  his  character  discussed.  Negative  evidence  is  competent, 
and  the  fact  that  a  person's  character  is  not  talked  about  at  all  is  often 
e.\eellcnt  evidence  that  he  gives  no  occasion  for  censure,  and  that  his 
char;icter  is  good. 

The  aecnsed  has  a  right  to  prove  his  real  disposition  and  character  (as  to  the 
traits  involved  in  the  case  on  trial)  by  the  testimony  of  those  who  know 
what  it  is  from  their  own  personal  observation. 

T)KRRY,  J.  The  defendant  was  indicted  for  tlio  coniinission  of 
a  nipi".  Upon  the  trial,  "  tlie  prosi'oiitiii!^  witness  testified, 
iiniong  other  things,  that  the  dofeiulant,  in  the  comiuisriiou  of  tha 


62 


AMERICAN  CRIMINAL  REPORTS. 


oflfense  clnirj^ed  in  the  indictment,  committed  a  violent  assault 
and  battery  upon  her,  and  threatened  to  take  her  life,  before  he 
cijinmitted  tlie  alleged  offense,  and  testified  she  was  sure  that  the 
defendant  was  the  person  who  committed  the  offense.  The 
defendant  testified  in  his  defense  that  he  did  not  commit  the 
alleged  offense,  and  was  not  present  at  the  time  it  was  committed, 
but  was  in  another  part  of  the  city  at  the  time.  *  *  *  and 
that  he  never  saw  the  prosecuting  witness  *  *  *  until 
several  days  after  *  *  *  she  alleged  the  offense  was 
committed." 

The  defendant  called  as  a  witness  one  Hopkins,  who  testified 
as  foiiows:  "Know  defendant ;  first  saw  him  nearly  two  years 
ago;  he  worked  at  the  driving  park  in  this  county ;  I  think  1 
am  acquainted  with  the  defendant's  general  character  for  peace- 
ableness."  On  preliminary  cross-examination  by  the  prosecuting 
attorney  the  witness  testified  as  follows :  "  N'ever  heard  his 
character  spoken  of  by  any  one  before  this  transaction."  On 
behalf  of  defendant  the  witness  was  asked  the  following 
(juestions,  viz. :  1.  "  What  was  defendant's  character  as  to  peace 
and  quietness  ?  "  2.  "  What  was  defendant's  disposition  as  to 
peace  and  quietness?"  Both  questions  were  excluded  by  the 
court  upon  objection  by  the  prosecution. 

Several  other  witnesses  were  asked  similar  questions  (also 
excluded),  but  none  of  them  appear,  from  the  testimony,  to  have 
been  acquainted  with  the  defendant's  character  for  peace  and 
quietness  (using  the  word  character  in  the  sense  of  reputed  char- 
acter, or  reputation),  so  as  to  qualify  them  to  testify  to  the  same, 
though  some  of  them  showed  more  or  less  knowledge  of  defend- 
ant's disposition.  Defendant  also  proposed,  in  the  language  of 
the  record,  "to  call  other  witnesses,  who  had  been  acquainted 
with  defendant  for  about  two  years,  but  who  had  never  heard 
his  character,  disposition  or  reputation  discussed  or  spoken  of, 
and  to  prove  by  them  that  his  disposition  for  peace  and  quietness 
was  good ;  also,  that  his  character  for  the  same  was  good,  and 
also  that  his  general  reputation  for  the  same  was  good  ;  but  the 
court  held  that  neither  of  the  above  could  be  shown  unless  the 
witnesses  would  testify  that  they  heard  the  defendant's  character 
i>v  disp.Kition  for  peace  and  quietness  discussed  or  spoken  of." 

13y  the  strict  and  technical  rule,  jis  laid  down  by  the  text 
writers,  the  only  evidence  of  his  good  character  whi(,h  an  accused 
person  is  permitted  to  adduce  upon  his  trial  for  a  ci-inilnal  offense 


STATE  V.  LEE. 


63 


is  evidence  of  general  repute.  In  practice,  however,  the  nile  is 
seldom  enfoi-cod,  but  is,  in  fact,  much  and  often  relaxed :  1 
Tavlor  Ev.,  §325  a,'  Regina  v.  Rowton,  2  Bennett  and  Heard 
Cr.  Cas.,  333,  et  seq.,  and  note  ;  Gnndolfo  v.  State,  11  Ohio  St., 
114;  1  Bisliop  Cr.  Prac,  §489.  A  very  sensible  and  commend- 
al>le  instance  of  the  relaxation  of  the  old  and  strict  rule  is  the 
reception  of  negative  evidence  of  good  character — as  for  example, 
the  testimony  of  a  witness  who  swears  that  he  has  been 
acquainted  with  the  accused  for  a  considerable  time,  under  such 
circumstances  that  he  would  be  more  or  less  likely  to  hear  what 
was  said  about  him,  and  has  never  heard  any  remark  about  his 
character — the  fact  that  a  person's  character  is  not  talked  about 
at  all  being,  on  grounds  of  common  experience,  excellent  evi- 
dence that  he  gives  no  occasion  for  censure,  or  in  other  words, 
tliat  his  character  is  good :  Regina  v.  Roioton,  2  Bennett  and 
Heard  Cr.  Cas.,  333  ;  GamMfo  v.  State,  11  Ohio  St.,  114.  In 
enforcing  the  strict  rule,  without  regard  to  this  relaxation  of  it, 
we  think  the  court  below  erred.  The  witness  Hopkins  testified, 
and  it  must  be  assumed  that  the  witnesses  whom  defendant  pro- 
posed to  call  would  have  testified,  to  an  acquaintance  with 
defendant  for  a  considerable  time,  under  circumstances  in  which 
his  bad  reputation  (if  such  he  had)  would  have  been  more  or  less 
likely  to  have  come  to  their  knowledge.  They  should  have  been 
permitted  to  testify  negatively  to  Kis  good  character  by  testifying 
in  effect,  that  they  never  heard  his  character  discussed  or 
spoken  of. 

This  brings  us  to  the  offer  of  testimony  in  regard  to  defend- 
ant's disposition  as  to  peace  and  quietness.  The  purpose  of  the 
evidence  as  to  the  character  of  the  accused  is  to  show  his  dis- 
position, and  to  base  thereon  a  probable  presumption  that  he 
would  not  be  likely  to  commit,  and,  therefore,  did  not  commit 
the  crime  with  which  he  is  charged :  1  Taylor  Ev.,  §  325 ; 
Riglna  v.  Roioton,  per  Earle,  C.  J.,  and  IMartin,  B. ;  1  Wharton 
Am.  Cr.  Law,  §  035.  This  presumption  does  not  rest  upon  the 
ground  that,  in  general  repute,  the  accused  possesses  a  disposi- 
tion which  would  render  it  unlikely  that  he  would  commit  the 
crime,  but  upon  the  fact  that  he  possesses  the  disposition — a  fact 
of  which  general  repute  is  only  evidence.  As  it  is,  then,  the 
fact  of  disposition  which  is  important  and  material,  there  can  be 
no  reason  why  this  fact  may  not  be  jiroved  by  any  witness  who 
inows  what  it  is.     There  is  certainly  no  reason  why  general 


ir  t 


64 


AMERICAN  CKWIINAL  REPORTS. 


repute  is  any  better  or  more  satisfactory  evidence  of  disposition 
tliiin  tli(i  testimony  of  oik;  who  knows  what  the  disposition  iu 
question  is  fioni  his  own  personal  observation.  If  it  could 
properly  be  objected  that  the  latter  kind  of  testimony  would  be 
matter  of  opinion,  a  like  objection  might  be  made  to  evidence 
of  general  repute  as  but  an  aggregation  of  oi)inions.  But  evi- 
dence of  the  disposition  of  a  person,  by  one  who  knows  such 
dispositioi  from  personal  observation,  is  not  evidence  of  opinion 
in  any  objectionable  sense.  It  is  evidence  of  a  fact — just  as 
much  evidence  of  a  fact  as  is  evidence  of  the  disposition  of  a 
horse.  Whether  the  witness  knows  what  he  pretends  to  know 
in  regard  to  the  dispositi<,n  of  a  person  in  question,  whether  his 
opportunities  for  ac(piiring  such  knowledge  have  been  sutHcient, 
or  his  ability  to  accpiire  it  has  been  competent,  are  matters  which 
there  is  no  practical  ditKculty  in  testing,  either  upon  a  prelimi- 
nary or  cross-examination,  or  both. 
Judgment  reversed,  and  the  case  remanded  for  a  new  trial. 


State  v.  Moon. 

(41  Wis.,  084.) 

Lakckny;    Emlrnce  —  Putthif]  accused  tMce  in  jeopardy. 

In  prosecutions  for  larceny,  if  tbe  owner  of  tlie  properly  alleged  to  have  been 
stolen  i.s  known,  and  his  altcndiincc  as  a  witness  can  be  procunnl,  his  tes- 
timony Hint  the  ])roperty  was  stolen  la  indispensable  to  a  conviction: 
State  V.  More)/,  3  AVis.,  4!t4. 

In  this  case,  the  prosecution  liavinu;  failed  to  procure  the  attendance,  as  a  wit- 
ness, of  tlie  owner  of  the  pnijierty  alienee'  to  have  beon  stolen,  or  to  show 
any  effort  to  procure  his  attendiince,  and  lh(^  sccondiiry  evideiu'c  of  tlie 
fact,  ndmitti'd  by  the  court,  being  very  weak  and  inconclusive,  tills  court 
(to  which  the  cause  was  certilicd  after  a  verdict  of  fiuilty)  advis(!s  the 
trial  court  that  tlie  evidence  is  insutlicieiit  to  uidmld  the  verdict. 

Dcift'udant,  havini;  U'cu  tried,  and  ha\  iiiji;  hecu  entitled  to  an  acijuittal  on  the 
evidence,  cannot  again  be  put  in  je  )pardy  of  punislinient  for  the  same 
ofTeiisi' (Const.,  art.  1,  sec.  8),  and  the  trial  court  is  tliircfore  advised  to 
arrest  judgment  and  discharge  Idni  from  cusiody, 

Ckrtifiko  from  the  circtiit  court  for  Ihiffalo  county. 

Information  for  a  larceny.     The  case  is  statt'd  in  the  opinion. 

The  Attoniei/Gciicrd!  for  the  state,  to  the  question  discussed 
and  dcteniiiiicd  by  this  court,  cited  /Ave  u.  Iht^tj  and  Coll'ms,  2 
0.  and  P.,  4r.S;  h'c.c  v.  All,,,,  1  ]\rootly.  1.j4;  PlunJa'tCs  Ca.s>; 


3  City  Hall 
251;  State  ^ 
Yerg.,  U5. 
There  was 

Lvov,  J. : 
tiie  larceny  f 
niitted  in  18' 
The  circuit  j 
statute  (R.  ^ 
mi  t  ted  for  oi 

"  Is  the  ev 
tends  to  sin: 
she  was  tak 
port  the  vcr 
cat-e,  it  is  u 
subiuitted. 

The  evidei 
the  judge's  i 
the  mare  in 
turned  her  o 
that  the  mar( 
for  her  for  a 
S])ring  the  d( 
until  ISC.!*,  a 
borne  had  h 
li'.'otiglit  an  a 
Tue  defenda 
deuce  at  the 

The  (^efet 
testitiei'  thai 
dofenduut's  r 
question,  wli 
days  bel'or(>, 
mare;  and  tl 
riugton  and 
cha.-e  beiiifr  t 
del'iMidant. 

Farringtot! 
that  at  the  ti 
is  alleged  he 
Vol,.   II. 


STATE  V.  MOON, 


65 


I 

I 


3  City  Tlall  Rec,  137 ;  Peoj>le  v.  Tilton,  2  Wlieeler's  Cr.  Cos., 
251;  State  v.  Morey,  2  Wis.,  494;  Lawrence  v.   The  State,  4 
Yorir.,  U5. 
Tliere  was  no  argument  here  for  the  defendant. 

Lvov,  J.:  Tlie  defendant  was  indicted  in  the  year  1871  for 
tlio  larceny  of  a  mare.  Tlic  larceny  is  alleged  to  have  been  eom- 
inittcd  in  1805.  In  187^  the  defendant  was  tried  and  convicted. 
The  circuit  judge  certified  the  case  to  this  court,  pursuant  to  the 
statute  (R.  S.,  ch.  180,  sec.  8) ;  and  one  of  the  questions  sub- 
mittod  for  our  determination  is  the  following: 

"  Is  the  evidence  given  on  the  part  of  the  proi^eeution,  which 
tends  to  show  that  the  mare  was  stolen  in  fact — that  is,  that 
she  was  taken  against  the  owner's  consent — sufficiient  to  s\jp- 
p(»rt  the  verdict  of  guilty?"  In  the  view  we  have  taken  of  the 
case,  it  is  unnecessary  to  consider  or  state  the  other  questions 
submitted. 

The  evidence  given  on  the  trial  is  returned  here  as  a  part  of 
the  judge's  report ;  and  it  appears  therefrom  that  the  owner  of 
the  mare  in  question,  one  Farrington,  in  the  spring  of  1805, 
turned  her  out  in  th(j  highway,  and  allowed  her  to  run  at  large; 
that  the  mare  was  Miissiiig  so«:i  after,  and  the  owner  made  search 
for  her  for  a  time,  but  failed  to  find  her;  that  during  the  same 
spring  the  defendant  sold  the  mare  to  one  Durisch,  who  kept  lier 
until  IS(')i),  and  then  sold  her  to  one  Paynborne;  and  that  Payn- 
horne  had  her  until  February,  1871,  at  which  time  Farrington 
b.onght  an  actio.i  of  replevin  for  her,  and  prevailed  in  the  action. 
Tne  defendant  lived  about  twelve  miles  from  Farrlngton's  resi- 
(li'nce  at  the  time  tlie  luare  wan  missing. 

The  defendant,  and  two  other  witnesses  produced  by  him, 
testiKei'  that  in  tlio  spring  of  18(!5,  F;u:ington  canu;  to  the 
dofotKh.nt's  resilience  in  searcli  of  a  sti.iv  mare;  that  the  mare  in 
(piestion,  wiiiv'h  had  strayed  in  the  defendant's  premises  a  few 
days  befor*',  was  pointed  out  to  him,  and  he  claimed  lu-r  as  his 
marc;  an  1  that  tiu'renpon  th')  defendant  purchased  her  of  Far- 
rington and  i)ai(l  him  the  agreed  price — the  object  of  the  pur- 
chaNO  being  to  secure  a  match  for  another  horse  owned  by  the 
(lefendant. 

I'MiTington  was  not  produce<I  as  a  witness.  The  ovidenco  is, 
that  at  the  time  of  the  trial  he  still  resided  whore  he  did  when  it 
is  alleged  he  lost  the  mare;  but  that  he  went  to  Kansas  sonic 
Vol,.  ir.~r. 


ft! 


n 


66 


AMERICAN  CULMINAL  KEPOKTS. 


I 


time  dui'ing  the  preceding  inontli,  and  had  not  returned  when 
tlie  trial  took  place. 

Tiie  foregoing  is  all  the  testimony  in  the  case  showing,  or 
tending  to  show,  that  the  mare  was  taken  without  the  consent  of 
the  owner,  or  that  the  attendance  of  the  owner  as  a  witness  at 
the  trial  could  not  be  procured. 

In  State  v.  2lorey,  2  AVis.,  494,  it  was  held  that  in  prosecu- 
tions for  larceny,  if  the  owner  of  the  property  alleged  to  have 
been  stolen  ie  known,  and  his  attendance  as  a  witness  can  be  pro- 
cured, his  testimony  that  the  property  was  taken  from  him  with- 
out his  consent  is  indispensable  to  a  conviction.  This  upon  the 
principle  that  his  testimony  is  the  primary  and  best  evidence 
that  the  property  was  taken  without  his  consent,  and  hence  that 
secondary  evidence  of  the  fact  cannot  be  resorted  to  until  the 
prosecution  shows  its  inability,  after  due  diligence,  to  procure 
the  attendance  of  the  owner. 

If  the  property  be  ':aken  from  the  immediate  possession  of  ati 
agent  or  bailee  of  tlie  owner,  probably  the  testimony  of  such 
iigeiit  or  bailee  oliowing  non-consent  would  answer  the  require- 
MKMit  of  the  rule.     This,  however,  is  not  such  a  case. 

Ill  the  j)reseMt  case,  the  secondary  evidence  of  the  non-consent 
of  the  owner  is  very  weak.  The  prosecution  failed  to  prove  that 
he  made  the  slightest  effort  to  Knd  his  mare  after  the  tin.o  the 
defendant  and  his  witnesses  testify  that  he  sold  her  to  the  defend- 
ant, until  he  replevied  her  from  Payid)orne  nearly  six  year; 
afterwards;  and  the  proof  is,  that  during  all  that  time  she  was 
kept  and  used  within  a  few  miles  of  the  ;"esidence  of  the  owner, 
and  was  freijuentiy  driven  into  his  neighborhood,  and  sometimes 
[liist  his  residence. 

Moreover,  the  prosLCUtion  has  failed  to  siiow  the  slighicst  dili- 
gence to  procure  the  attendance  of  the  owner  as  a  witness.  It 
does  not  appear  but  that  a  simple  rerpiest,  either  orally  or  by 
letter,  W()ul<l  have  secured  his  attendaiu!e.  Had  the  case  been 
continued  for  a  term  (and  his  absence  after  due  diligence  to 
.secure  his  attendance  would  have  been  good  cause  for  a  continu- 
ance), it  is  quite  probable  that  his  attendance  could  have  been 
procured.  In  short,  it  does  not  appear  that  the  ])rosccution  wan 
unable  to  secure  the  attendance  of  the  owner  of  the  mare  as  a 
witness. 

In  view  of  the  very  weak  and  unsatisfactory  character  of  the 
secondary  testimony  of  the  owner's  non-consent,   this  seems  a 


very  proper 
<]hief  Justi( 
•it  does  not 
linve  been  o 
that  the  mr 
admissible  a 
guilty.  See 
(4th  ^' 
above  quest  i 
The  defet 
indictment, 
wo^tI.I  be  to 
sanu-  M'fenst 
right .  Con 
to  arrest  juc 

Note.— The 
case,  in  ordcri 
acquittal  on  tli 
in  tlie  case  of 
Qordon  will  I 
▼olumc  of  this 


Evn 

W.  was  indict 
tliat  .J.,  a 
miulc  und 
he  diri'ctc 
them.  .T. 
nnd  they  ] 
\V.  Imd  m 
money  cli 
over  liy  ll 

Hehl  it  not  III 
the  sliitcil 
blurs  anil 

At  the  ,Ti 
Richmond, 
$150  of  Tin 


I 


WILLIAMS  «.  COMIklONWEALTH. 


67 


very  proper  case  for  the  application  of  tlie  rule  laid  down  by 
Ohief  Justice  Wiiitou  in  State  /•.  Iforey,  s^ijjra.  And  l>':t»anse 
•it  does  not  appear  that  the  testimony  of  the  owner  could  not 
linve  been  obtained,  we  must  hold  that  the  secondary  evidence 
tiiat  the  mare  was  taken  against  the  consent  of  the  owner,  if 
admissible  at  all,  was  entirely  insufficient  to  uphold  a  verdict  of 
guilty.  See  cases  in  Cowen  and  Hill's  T^otes  to  PhilHpps  on  Ev. 
(•Ith  ^  d.,  by  Edmunds),  635.  "VVe  therefore  answer  the 
al)ovt  question  in  the  negative. 

The  defendant  lias  been  tried  for  the  offense  charged  in  the 
indictment,  and  was  entitled  'o  an  acquittal.  To  try  him  again 
wo^ild  be  to  put  him  twice  in  jeopardy  of  punishment  for  the 
<'u>u'  orfense,  which  would  be  a  violation  of  a  gr\at  constitutional 
rigiit .  Const.,  art.  I,  sec.  8.  Hence  we  advi  ;  the  circuit  court 
to  arrest  judgment  and  discharge  the  defendant. 

Note. — Tlie  preccdont  made  by  the  Supreme  Court  of  Wisconsin  in  this 
case,  in  ordering  the  discharge  of  one  wlio  was  entitled,  on  liis  trial,  to  an 
acquittal  on  the  merits,  has  heen  followed  by  tlie  Supreme  Court  of  Michigan, 
in  the  case  of  People  v.  Gordon,  decided  at  the  April  term,  1879.  People  v. 
G<yrdon  will  be  reported  in  40  Mich.,  now  in  preparation,  and  in  tho  next 
volume  of  this  series. 


Williams  v.  Commonwealth. 

(27  Gratt..  Va.,  997.) 

EvtDENCK:    CoiifesKioiM  under  promise  —  What  competent, 

W.  was  indictfd  for  stealing  $150,  the  money  of  S.  On  the  trial  it  was  proved 
that  .1.,  a  detective,  arrested  W.,  who  made  a  confession,  which  was 
made  under  promise,  and  was  excluded  as  evidence.  In  this  conlession 
he  directed  J.  to  go  to  certain  gamblers  and  get  the  money  back  from 
them.  J.  sent  for  the  giuiililers  named,  ami  told  them  what  W.  had  said, 
nnd  tliey  paiil  over  to  ,1.,  for  8.,  ft04.  tiiough  one  of  them  protested  that 
W.  had  not  been  at  liis  house,  and  tlie  others  deiiieil  Hint  ho  iiad  lost  the 
moni'y  cliiiineil  wltli  Ilium.  The,  bHlauco  of  tho  iiiuiiey,  |tO,  was  paid 
over  by  llw  I'lillier  of  W. 

Ikhf,  it  not  lieiM'j;  proved  tliiit  the  money  paid  to  .T.  was  tho  same  lost  by  S. , 
lli(^  stiiteincril  i>(  \V.  to  J.,  and  of  wliat  passed  lielween  J,  and  the  gam- 
blers ami  the  iiither  ol'  \V.,  is  not  competent  evidence. 

At  the  .Tiiimarv  term.  1ST<!,  of  the  imstiiigs  coiii't  of  tho  city  of 
Ricliiiiond,  Tleubcn  "Williams  wns  iiidictcij  for  tlie  stealing  of 
$150  of  TTiiitcd  States  currency,  tlie  pnipei'ty  of  Peter  Sliieldrt. 


i' 


68 


AMERICAN  CRIMINAL  REPORTS. 


He  was  tried  at  tlie  same  term  of  the  court,  was  found  guilty^ 
and  sentenced  to  tliree  years'  imprisonment  in  tlie  penitentiary. 
On  tlie  trial  the  prisoner  took  two  bills  of  exception  to  the  rul- 
ings of  the  court.  The  first  was  to  the  admission  of  certain  tes- 
timony offered  by  the  commonwealth,  and  the  other  was  the 
refusal  of  the  court  to  set  aside  the  verdict  and  grant  him  a  new 
trial,  on  the  ground  that  the  verdict  was  contrary  to  the  law  and 
the  evidence. 

On  the  trial,  after  evidence  had  been  introduced  as  to  the  loss 
of  the  money  by  Shields,  ard  his  employment  of  John  Wren  as 
a  detective,  and  Wren  had  stated  that  the  prisoner  had  made 
a  confession,  which  the  court  excluded,  the  attorney  for  the 
commonwealth  asked  the  witness  Wren  whether,  in  consequence 
of  the  statement  of  the  prisoner,  and  in  pursuance  of  his  direc- 
tion he  took  any  action  about  the  lost  money  and  obtained  it? 
To  this  question  the  prisoner,  by  his  counsel,  objoctcu  ;  but  the 
court  overruled  the  objection  and  allowed  the  question  to  be 
asked. 

The  witness  then  stated  that,  in  pursuance  of  the  direction  and 
statement  of  the  prisoner,  he  sent  for  four  gatnblors,  who  came 
to  his  oftice,  where  they  paid  him  the  sum  of  .^104;  but  that  this 
was  not  the  identical  money  that  Shields  lost ;  and  that  the  other 
$46,  making  the  sum  of  $150  which  was  stolen,  were  jiaid  to 
Shields  by  ])risoner'8  father.  To  this  (piestion  and  answer  the 
prisoner  ex(!eitted. 

LFpon  the  se(!ond  exception  the  court  certified  the  facts,  which, 
it  will  be  seen,  includes  the  facts  spoken  of  by  the  witness  AVi-en, 
and  objected  to  Ijy  the  prisoner. 

That  on  or  about  the  12th  day  of  December,  1870,  the  pris- 
oner and  one  Peter  Shields  and  another  occupied  the  same  bed- 
room in  the  city  of  Richmond— all  being  stonecutters  and  work- 
ing in  the  same  yard  ;  that  there  were  other  persons  living  in  the 
same  house;  that  on  the  night  of  tliiit  dny  the  said  Shields  hav- 
ing received  his  pay,  one  hundivd  and  iifty  dollars  in  United 
States  currency,  deposited  it  in  his  tniiik  in  an  unoccupied  room 
adjoining  the  hed-roum,  which  room  had  two  doors,  one  opeiiin"- 
into  the  bed-room  and  an(»tlier  into  a  rear  porch;  that  he  locked 
his  trunk;  that  about  two  weeks  afterwards  Shields  went  to  his 
trunk  and  found  that  his  money  liail  been  stolen,  the  trunk  being 
still  locked,  having  been  (.peiied  with  a  fnlse  key ;  that  on  the 
day  after  Shields  deposited  his  money   in  the  trunk  prisoner 


remained  in 

gone  to  their 

yard  that  da 

chased  a  nc 

some  time  w; 

work ;  that  x 

for  the  arres 

Wren,  who  \ 

the  purpose  < 

that  John  \V 

inducements, 

he  directed  "^ 

money  from 

Wren  sent  fo 

said,  and  thej 

dred  and  foi 

prisoner  had 

had  lost  the  i 

money,  fort}' 

fifty  dollars  s 

the  prisoner 

present  at  tlu 

and  said  he  ii 

at  the  same  ti 

fifty  cents  jh' 

Upon  the 

awarded  by  tl 

0.  D.  Il7.y, 

The  Alton 

MoNCUUK,  P., 

The  court  i 
ruling  the  im 
the  grotind  tli 
The  eonfessio 
and  to  the  co 
properly  exdi 
Ihit  the  trail 
panihlers  and 
hill  of  excepti 
no  doubt  upoi 


'ih 


WILLIAMS  V.  COMMONWEALTH. 


69 


remained  in  their  room  after  Shields  and  the  other  occupant  had 
gone  to  their  work ;  that  prisoner  did  not  go  to  his  work  or  the 
yard  that  day ;  that  on  the  evening  of  that  day  prisoner  pur- 
chased a  new  suit  of  clothes,  costing  sixty-five  dollars,  and  for 
some  time  was  spending  money  very  freely  and  neglecting  his 
work ;  that  upon  ascertaining  his  loss,  Shields  took  out  a  warrant 
for  the  arrest  of  prisoner,  and  placed  it  in  the  hands  of  John 
Wren,  who  was  appointed  a  special  constahle  by  the  justice  for 
the  purpose  of  making  the  arrest  of  the  prisoner  on  the  warrant ; 
that  John  Wren  arrested  the  prisoner,  and  having  offered  him 
inducements,  the  prisoner  made  a  confession,  in  which  confession 
he  directed  Wren  to  go  to  certain  gamblers  and  get  back  the 
money  from  them  ;  that  in  pursuance  of  such  instruction,  John 
Wren  sent  for  the  gamblers  named,  told  them  what  prisoner  had 
said,  and  they  paid  over  to  him  for  Shields  the  sum  of  one  hun- 
dred and  four  dollars,  though  one  of  them  protested  that  the 
prisoner  had  not  been  in  his  house,  and  the  others  denied  that  he 
had  lost  the  money  claimed  with  them ;  that  the  balance  of  the 
money,  forty-six  dollars,  making  the  sum  of  one  hundred  and 
fifty  dollars  stolen,  was  paid  over  by  the  prisoner's  father ;  that 
the  prisoner  also  made  a  confession  to  Shields ;  that  Shields  was 
present  at  the  interview  between  John  AVren  and  the  gamblers, 
and  said  he  meant  to  prosecute  them ;  tli.at  prisoner  was  paid  off 
at  the  same  time  Shields  was,  and  he  received  tliree  dollars  and 
fifty  cents  jx'i'  du'iit. 

Upon  the  a])plication  of  the  prisoner,  a  writ  of  error  was 
awarded  by  this  court. 

G.  D.  Wise  and  .S".  Page,  for  the  prisoner. 

The  Attonu'ij-Geiwral,,  for  the  connnonwealth. 

i[(>X('i:KK,  P.,  delivered  the  opinion  of  the  court. 

The  court  is  of  opiiiicm  tliat  the  hustings  court  erred  in  ovcr- 
rnliiig  the  motion  of  the  prisoner  to  set  aside  the  verdict  upon 
the  ground  that  the  same  was  contrary  to  the  law  and  evidence. 
The  confessiotis  iiiiuU'  by  the  prisoner  to  the  jirosef'utor  Sliields, 
iuid  to  tiie  constable  Wren,  having  been  illogally  obtained,  were 
properly  excluded  by  tlie  fourt  as  being  inadmissible  evidence. 
I'ut  the  transactions  wliich  occurred  between  Wren  and  tlic 
giiiiiltlers  1111(1  the  father  of  the  prisoner,  as  set  out  in  the  second 
hill  of  exce|)tioiis,  were  admitted  as  evidence'  against  the  prisimer; 
no  doiiht  iipon  the  ground  which  is  thus  stated  in  1  Arch.  Crim. 


1% 


f  ^.:.l 


70 


AMERICAN  CRIMINAL  REPORTa 


Prac.  and  PI.,  p.  424,  top  134  marg.,  that  "  even  in  cases  where 
the  confession  of  a  prisoner  is  not  received  in  evidence  on 
account  of  its  having  been  obtained  by  means  of  some  threat  or 
promise,  any  discovery  made  in  consequence  of  it  may  be 
proved ;  and  in  such  a  case  the  counsel  for  the  prosecutiqn  is 
men-ly  allowed  to  ask  the  witness  wliether,  in  consequence  of 
something  he  heard  from  the  prisoner,  he  found  anything,  and 
Avhere,  etc.;  and  the  witness,  in  answer,  can  only  give  evidence 
of  th»>  fact  of  the  discovery." 

But  the  tliir.g  found,  or  the  discovery  made,  in  consequence  of 
the  ooiiiession,  must  be  material  in  itself,  and  appear  to  have 
some  connection  with  the  crime  or  the  charge,  independently  of 
the  confession.  The  rule,  and  the  reason  of  it  is  thus  laid  down 
in  1  Greenl.  on  Ev.,  §  231 : 

"The  object  of  all  the  care  which,  as  we  have  now  secji,  is 
taken  to  exclude  confessions  which  are  not  voluntary,  is  to 
exclude  testimony  not  probably  true.  But  where,  in  consequence 
of  the  htformation  obtained  from  the  jtrmmer,  the  property 
stolen,  or  the  instrument  of  the  crime,  or  the  bloody  clothes  of 
the  person  mi.rdered,  or  aui/  other  material  fact  is  discovered, 
it  is  competent  to  show  that  such  discovery  was  made  conform- 
ably to  the  information  given  by  the  prisoner.  The  stateiiu-nt 
as  to  his  knowledge  of  the  place  where  the  j)roi)erty  or  other  evi- 
dence was  to  be  ft)und,  being  thus  confirmed  by  the  fact,  is 
pro.'cd  to  be  true,  and  not  to  have  been  fabricated  in  conse- 
quence of  any  inducement.  It  is  competent,  therefore,  to 
inquire  wliether  the  prisoner  stated  that  the  thing  would  I)e 
found  by  searching  a  particular  place,  and  to  prove  that  it  was 
accordingly  so  found;  but  it  would  not  be  competent  to  incjuire 
whether  he  (ionfesscd  that  he  had  concealed  it  there." 

"§  232.  If,  in  consequence  of  the  confession  of  the  prisoner, 
thus  improperly  induced,  and  of  the  information  by  him  given, 
the  search  for  the  property  or  ]U'rsun  in  question  //rcres  whnllif 
inefectiia/.,  no  ])roof  of  either  will  be  received.  The  confession 
is  excluded  because,  being  made  under  the  inlhience  of  a  promise, 
it  cannot  be  relied  upon;  and  the  acts  and  inl'ormation  of  the 
prisoner,  under  the  same  intliience,  not  being  contirmed  by  the 
finding  of  the  pntperty  or  ])er,s()n,  are  opiMi  to  the  same  objection. 
The  inliuence  which  may  pro(hice  a  groinidU'ss  confession,  miiy 
also  produce  groundless  conduct." 

The  notes  of  Waterman  to  1  Arch.,  sujjra,  refer  to  many  ca^es 


WILLIAMS  f    COALAIONWIOALTIL 


having  an  important  bearing  on  tin's  subject.  And  so  have  tlie 
following  cases,  some  or  all  of  which  were  cited  by  the  counsel 
for  the  prisoner  in  this  case :  Gr{ffin\9  Case,  1  Russell  and  llyan, 
151 ;  Joncii's  Caxe,  Id.,  152 ;  aiul  Jeithin.s'  Case,  Id.,  492.  Also, 
T/ic  Stale  v.  Dae,  7  Foster's  Tl.,  250.  The  first  of  these  cases 
seem  to  have  been  decided  on  the  same  day  by  the  same  judge.-, 
and  yet  they  seem  to  be  somewhat  in  conHict  with  each  other. 
They  were  decided  at  the  Winchester  Lent  assizes  in  1800.  In 
Griffin'' s  Case,  a  prisoner  was  charged  with  stealing  a  guinea  and 
two  proniissuj-y  notes.  The  prosecutor  told  hiui  that  it  would 
he  better  for  him  to  confess. 

Held,  that  after  this  admonition  the  prosecutor  might  prove 
that  the  prisoner  brought  him  a  guinea  and  a  five-pound  note, 
which  he  gave  up  to  the  prosecutor  as  the  guinea  and  one  of  the 
notes  that  had  been  stolen  from  him.  The  judge,  Chamhre,  told 
the  jury  that,  notwithstanding  the  pre  'ous  inducement  to  confess, 
they  might  receive  the  prisoner's  description  of  the  note  accom- 
pjuiying  the  act  of  delivering  it  up,  as  evidence  that  it  was  the 
Ktolen  note;  and  they  found  the  prisoner  guilty.  A  majority  of 
the  judges,  to  wit,  seven  of  them,  held  the  conviction  right ;  two 
of  them  were  of  a  contrary  opinion. 

In  JoHes''s  Case,  which  was  for  the  larceny  of  money  to  the 
amount  of  one  pound  eight  shillings,  the  prosecntor  asked  the 
])risoner,  on  finding  him,  for  the  money  he,  the  prisoner,  had 
tiikcn  out  of  the  j)r()secutor's  pack,  but  heforethe  ittonei/  nms pro- 
duced said,  ''he  oidy  wanted  his  money,  and  if  the  prisoner  gave 
l.ini  that,  he  might  go  to  the  devil,  if  he  pleased."  Upon  which 
])risoner  took  lis.  Old.  out  of  his  pocket  and  said  it  was  all  he 
Imd  left  of  it. 

Held,  that  the  confi.'ssiou  ought  not  to  have  been  received. 
The  saiiK'  judge,  C/ia/id>re,  left  the  whole  of  this  evidence  for 
the  coiisidci'atioii  of  the  jury,  and  they  found  the  prisonrr  guilty. 
A  innjoi'ily  of  the  judgn-s  pri'sont,  to  wit,  tivi'  (»l  tliein,  held  that 
the  evidence  wa>  not  admissible,  and  the  conviction  wrong. 
Tiiree  of  them  citufra.     Lortl  Klli>nboroui;li  did)lt,iiit< . 

h\  Jenkins  Ciise,  \\\\'u'\\  was  decided  in  I ''J i\  the  charge  was 
fitealiiig  several  gowns  and  otlii-r  article-.  The  prisoner  was 
iiiihiceil,  by  a  promiwc  fnnu  the  prusecutor,  to  con  es- hi- i^iiilt, 
iinil  after  that  coiile.-sion  Ije  (-arried  the  otlicer  i"  :i  particidar 
hmise,  as  and  for  the  house  where  he  bad  dis[)osed  of  the  prop- 
erty, and  pointed  out  tlu;  ])erson  to  wh'm  he  had  delivered  it. 


•rr 


i 


(2 


amtjirican  criminal  reports. 


1;:.] 
11    . 


That  person  denied  knowing  anything  about  it,  and  the  pro])erty 
was  never  found.  The  evidence  of"  the  confession  was  not 
received ;  the  evidence  of  his  carrying  the  officer  to  the  luiiisc 
above  mentioned  was;  but  as  Mr.  Justice  Baylcy,  before  wlioiii 
the  prisoner  was  convicted,  thouglit  it  questionable  whctlicr  that 
evidence  was  riglitly  received,  lie  stated  the  point  for  the  consid- 
eration of  the  judges.  They  accordingly  considered  it,  and  were 
(it  seems  unanimously)  of  oi)inion  that  the  evidence  was  not 
admissible,  and  that  the  conviction  was  therefore  wrong. 

"  The  confession  was  excluded,  because  being  made  under  the 
influence  of  a  promise,  it  could  not  be  relied  upon,  and  the  acts 
of  the  i)risoiier,  under  the  same  influence,  not  being  confirmed 
by  the  finding  of  the  property,  were  open  to  the  same  objecrtion. 
Tlie  inllnence  which  might  produce  a  groundless  confession 
might  also  pi-oduce  groundless  conduct," 

This  case  is  in  direct  accordance  \\\t\\  Jones's  Case,  and  if  they 
are  in  conflict  with  Gnffiii's  Case,  they  overrule  it,  as  they  were 
suhsciiuent  thereto,  at  least  Jenl'ivs'  Case.  But  Gr)jfin''s  Case 
seems  to  rest  upon  the  ground  (whether  right  or  wrong)  that  the 
note  delivered  up  was  of  the  same  denomination  and  of  the  same 
baidc  witli  one  of  the  notes  stolen,  and  that  the  act  of  delivering 
it  uj)  was  accompanied  by  the  declaration  of  the  prisoner  that  it 
was  one  of  the  stolen  notes. 

in  JoihNH  Case  it  does  not  appear  that  the  money  delivered  up 
by  the  prisoner  was  admitted,  or  intended  to  be  admitted  by  him, 
to  ho  a  part  of  the  identical  money  he  had  stolen,  though  we  do 
not  nieati  to  say  that  even  such  an  admission  would  have  varied 
the  case., 

In  the  State  v.  Due,  whidi  was  much  relied  upon  by  the  coun- 
sel for  the  prisoner  in  the  argument  of  this  case,  and  in  which 
most  of  the  authorities  on  this  subject  are  reviewed,  it  was  held 
tiiat,  on  a  charge  of  larceny,  the  production  of  property  by  a 
])risoner,  made  in  coiisecpience  of  imhicements  held  out  to  con- 
fess, will  not  be  competent  evidence  against  him,  unless  the  i)rop- 
erty  l)e  identified  by  other  evidence  as  that  which  has  beeii 
stoh'U. 

The  prisoner  was  charged  with  stealing  two  one-humlrcd- 
dollar  bills  and  a  wallet.  On  inducements  held  out  to  him  to 
confess,  he  ])roduced  a  hundred-dollar  bill,  saying  to  the  com- 
plainant, "this  is  yours;"  or,  as  another  witness  uiKlerstood  him, 
"this  is  one  of  the  bills  which  I  took  with  the  wallet."     It  was 


held  that  thi 
be  identified 
stolen.     Thi 
to  expound 
expounded  t 
Now,  if  1 
father  of  the 
by  independ 
oner,  to  hav 
stolen  by  hii 
discovered, 
cry,  would  h 
to  the  law  a^ 
lUit  so  far 
tity  of  the 
tended  that 
certainly  w<i 
had  lost  the 
tested  that  t 
cutor  was  pi 
gamblers,  ar 
tainly  appea 
and  they  un^ 
been  guilty 
way  implica 
them  for  gai 
there  was  a 
should  have 
from  proseci 
which  they 
ing  that  the 

In  regard 
titable  by  th 
that  was  a  ] 
money  stole 
paid  that  su 
inul  prosecu 

Then  all 
gamblers,  ai 
confession  \ 
evidence,  ai 


'J«, 


WILLIAMS  V.  COMMONWEALTH. 


73 


held  tliat  tliis  evidence  was  incompetent,  nnlops  the  bill  should 
he  identified  bj  other  evidence  as  one  of  those  which  had  been 
etolen.  This  case,  as  well  as  Jones's  and  Jenkins',  snj>ra,  seem 
to  expound  the  law  correctly.  And  now  let  us  apply  it  as  so 
expounded  to  this  case. 

Now,  if  the  money  delivered  up  by  the  gamblers  and  tlie 
father  of  the  prisoner  to  the  constable,  Wren,  had  been  proved 
by  independent  evidence,  other  than  the  confession  of  the  ])ris- 
onor,  to  have  been  the  identical  money  confessed  to  have  been 
stolen  by  him,  then  the  fact  that  the  stolen  property  was  thus 
discovered,  and  that  the  prisoner's  confession  led  to  snch  discov- 
ery, would  have  been  admissible  evidence  in  the  case  according 
to  the  law  as  just  expounded. 

1  >nt  so  far  from  there  being  any  independent  evidence  of  iden- 
tity of  the  money  delivered  up  to  the  constable,  it  is  not  pre- 
tended that  it  was  the  same  money  that  was  stolen,  as  it  almost 
certainly  was  not.  And  the  gamblers  denied  that  the  prisoner 
had  lost  the  money  claimed  with  them ;  and  one  of  them  pro- 
tested that  the  prisoner  had  not  been  in  his  house.  The  prose- 
cutor was  present  at  the  interview  between  the  constable  and  the 
gamblers,  and  said  he  meant  to  prosecute  them.  It  does  not  cer- 
tainly appear  what  for.  Though  it  is  probable  that  he  meant, 
and  they  understood  that  ho  meant,  for  gambling  ;  for  they  had 
been  guilty  of  gambling,  but  do  not  appear  to  have  been  in  any 
way  implicated  in  the  larceny.  That  such  a  menace  to  prosecute 
them  for  gambling,  a  highly  penal  offense,  made  at  a  time  when 
there  was  a  great  effort  to  enforce  the  law  against  that  offense, 
should  have  induced  these  gamblei's  to  purchase  an  exernption 
from  prosecution  for  it  by  paying  up  among  them  the  sum  of  $  lO-t, 
which  they  did  under  protest,  is  not  at  all  strange,  even  suppos- 
ing that  they  never  won  a  dollar  from  the  prisoner. 

In  regard  to  the  balance  of  forty-six  dollars  jiaid  to  the  con- 
stable by  the  prisoner's  father,  there  is  no  evidence  whatever  that 
that  was  a  part  of  the  money  stolen,  or  that  any  part  of  the 
money  stolen  went  into  the  hands  of  the  father,  who  may  have 
paid  that  sum  out  of  his  own  money  to  save  his  son  from  a  crim- 
inal prosecution. 

Then  all  this  evidence  in  regard  to  money  received  from  the 
gamblers,  and  from  the  father  of  the  |>risoner,  together  with  the 
confession  wiiich  led  to  its  discovery,  is  illegal  and  inadmissible 
evidence,  and   must  be  excluded   from  the  case,  and  being  so 


1 


u 


■^71 


n 


AMERICAN  CHLMINAL  UEl'ORTS. 


excluded  tliore  is,  rcrtiiinly,  not  eiunijjfli  in  the  case  to  warrant 
tlie  verdict  of  the  jury.  Vov  all  the  evidence  then  remaining  in 
the  case  is,  that  the  prisoner  and  another  were  room-mates  of  the 
prosecutor;  that  the  prosecutor  received  ^150  for  his  work,  and 
locked  it  up  in  his  trunk,  which  he  kept  in  an  adjoining  unlo<'ked 
room,  with  two  doors,  one  opening  into  their  bedroom,  the  other 
into  a  porch;  that  about  two  weeks  afterwards  the  prosecutor 
Avout  to  his  trunk  and  found  that  his  money  had  been  stolen,  the 
trunk  being  still  locked,  having  been  opened  with  a  false  key ; 
that  on  the  day  after  the  prosecutor  deposited  his  money  in  his 
trunk,  the  prisoner  remained  in  his  room  after  the  ])rosecutoi' 
and  another  occupant  had  gone  to  their  work  (all  the  said  occu- 
pants being  stonecutters  and  working  in  the  same  yard);  that 
prisoner  did  not  go  to  his  work  or  yard  that  day ;  that  on  the 
evem'ng  of  that  day  prisoner  purchased  a  new  suit  of  clothes 
costing  ^Oo,  and  for  some  time  was  speriding  money  very  freely, 
and  neglecting  his  work  ;  and  that  ujwn  ascertaining  his  loss,  the 
prosecutor  took  out  a  warrant  for  the  arrest  of  the  prisoner  and 
])la(!cd  it  in  the.  hands  of  John  Wren,  who  was  ap[)ointed  a 
special  constable  by  the  justice  for  the  purpose  of  making  the 
arrest  of  the  prisoner  on  the  warrant;  that  John  AVren  arrested 
the  prisoner,  and  having  olTered  him  inducements,  the  prisoner 
niiide  the  confession  which  led  to  tin;  transaction  as  aforesaid 
with  tlui  gamblers  and  the  father  of  the  prisoner. 

Certaiidy  this  evidence,  separate  and  ai):irt  from  the  said  trans- 
action and  the  said  confession,  which,  as  we  have  seen,  are  illegal 
and  inadmissible  evidence,  can  create  no  more  than  a  mere  sus- 
jticion  of  guilt  in  the  prisoner,  is  altogether  inconclusive,  and  is 
wholly  iiisullicient  to  warrant  the  verdict  of  guilty  against  him, 
esj)ecially  when  considered  in  connection  with  evidence  in  the 
cause  in  behalf  of  the  prisoner,  that  he  received  three  dollars  and 
iifty  (nyuitijxr  dai/i  for  his  wages,  and  was  paid  olT  on  the  same 
day  with  the  jjrosecutor.  AVliy  may  we  not  presume,  in  fa\or 
of  innocence,  that  the  $('..')  he  laid  out  in  clothes,  and  the  money 
he  was  s])cndiiig  very  freely,  was  his  own  nioni'y  ?  Certaiidy  it 
was  not  the  jjrosecutor's,  according  to  the  theory  of  the  prosecu- 
tion, which  is,  ihat  his  money,  some  of  it,  went  (o  the  gamblers, 
and  the  bnlanco  was  deposited  in  the  hands  of  the  prisoner's 
fatli(>r. 

AVe  theref.ire  tliiidv-  the  court  ei'ivd  in  iu>t  setting  aside  the 
verdict  and  granting  a  new  trial,  at,  mentioned  in  the  second  bill 


of  exception 
court  ei'red 
answer  ment 
Therefore 
and  the  cans 
conformity  ■ 


Seduction 

In  an  action  i 
direct  pn 
raised  ou 
lawfully  I 

In  an  action  f< 
ties  on  tlu 
whether  it 

Where  the  pi 
told  her  t 
allow  cou 
bearinit  or 

In  the  exuniin 
test  i  tied  t 
promise,  1 
talked  to 
jury,  whi 
rassincnl 
and  delei 
defendant 
would  coi 
to  charge 
the  trial, 
him  guilt 

Errok  t 
October  30 
Seductioi 
BetiJ.  r. 
plaintill  in 
the  proseci 
201);  Peop 
presumed : 


'  ■  J 


LEWIS  V.  PEOPLE. 


76 


of  exceptions.  "We  also  tliink,  for  reasons  already  assigned,  the 
court  erred  in  not  excluding  from  the  jury  the  question  and 
answer  mentioned  in  the  first  hill  of  exceptions. 

Therefore,  the  judgment  of  the  hustings  court  is  reversed, 
and  the  cause  is  remanded  for  a  new  trial  to  he  had  therein  in 
conformity  with  the  foregoing  oi)inion. 


Lewis  v.  People. 

(37  Mich.,  518.) 

Sbdoction:    Proof  that  the  seduced  woman  was  unmarried — Evidence. 

In  an  action  for  the  seduction  of  a  girl  tliirtncn  years  old,  the  omission  of 
direct  proof  thiit  she  was  not  nuirriod,  the  question  not  hiivinj;  been 
raised  on  the  trial,  was  held  unimportant.  At  that  age  she  could  not 
lawfully  be  married. 

In  an  acticm  for  seduction,  evidence  of  the  conduct  and  appearance  of  the  par- 
ties on  the  day  following  the  alleged  offense  is  relevant  to  help  ascertain 
wliethcT  it  had  been  accomplished  by  seductive  means. 

Where  the  prosecutrix,  in  a  seduction  case,  has  testified  that  defendant  has 
told  her  that  certain  other  girls  allowed  such  liberties,  it  was  proper  to 
allow  counsel  !'-  the  prosecution  to  ask  her  their  names,  as  evidence 
bearing  on  the  means  ii.sed  in  elTecting  the  seduction. 

In  the  cxandnation  preliminary  to  a  iH-oseculion  for  seduction,  tlu;  prosecutrix 
testified  tlial  defendant  liad  offered  her  no  inducement  and  made  no 
promise,  but,  on  the  trial,  she  testified  that  he  had  protested  liis  love  and 
talked  to  her  of  marriage.  Ikhl,  that  it  was  reasonabli!  to  caution  the 
jury,  which  had  an  opportunity  to  ob.scrve  her,  to  consider  lier  embar- 
rassment on  tlie  examination,  and  her  youtii  and  degree  of  intelligi'nce, 
and  determine  whetJKir  she  would  have  volunteered  to  tell  all  that 
defendant  had  said  to  her  about  love  and  marriage,  and  whether  she 
would  consider  it  as  a  i)romise  imless  her  attention  was  called  to  it,  and 
to  charge  them  that  if  they  were  satisfied  that  she  had  told  the  truth  on 
the  trial,  and  that  defendant  had  induced  her  to  consent,  they  should  lind 
him  guilty. 

Error  to  Hillsdale.  Submitted  October  16th.  Decided 
October  30th. 

Seduction.     The  facts  are  in  the  opinion. 

Bei\).  1*.  Shejhird  and  Dlclcerman  tfc  St.  John  (on  brief)  for 
plaintiff  iti  error.  Conviction  of  seduction  without  proof  that 
the  prosecutrix  is  unmarried  is  error:  West  v.  /State;  1  Wis., 
iiOi);  People  v.  Ketiyon^  5  Park.  Crim.  Kep.,  254.  It  caimot  be 
pi'csumed :     Vei>j)le  v.   Lamhert,   5   Mich.,   349 ;    Shannon  v. 


^.fl 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


T 


1.0 


1.1 


li^lM    |25 
^  lii   12.2 

S    tiS.     12.0 
u 


lljl 

L25  11114  IJA 


6" 


Photographic 

Sciences 

Ccnporation 


99  WUT  MAIN  STRUT 

VtflUTIR.N.Y.  14SM 

(7U)  •73-4509 


4^ 


78 


AMERICAN  CRIMINAL  REPORTS. 


People,  Id.,  71     A  cliarge  unwarranted  by  evidence  is  error : 
Amer.  Tram.  Co.  v.  3foore,  5  Mich.,  368 ;  Hewitt  v.  Begole, 
'i'ii,  Mich.,  31 ;  Drme  v.  Wheeler,  26  Mich.,  200. 
Attorney-general  Otto  Kii'chier  (on  brief)  for  the  people. 


Graves,  J.  Tlie  plaintiff  in  error  was  convicted  of  having 
seduced  and  debauched  one  Alice  Tiffany. 

The  act  of  intercourse,  which  was  admitted,  occurred  at  her 
father's  house,  where  she  resided,  on  the  evening  of  July 
23d,  1876. 

At  that  time  she  was  only  three  months  above  the  ago  of 
thirteen  years.  Her  mother  had  died  some  time  before,  and  she. 
together  with  her  sister  Julia,  some  two  years  older,  had  the 
principal  charge  of  some  younger  children.  She  was  going  to 
school,  and,  according  to  evidence  called  out  by  defendant's 
counsel,  had  previously  been  a  constant  attendant. 

The  first  ground  of  error  is  that  there  was  no  proper  proof 
that  she  was  unmarried.  There  is  an  exjiress  statement  in  the 
bill  of  exceptions  that  all  the  evidence  is  given.  There  is  some 
reason  to  think  that  this  statement  is  inaccurate.  At  page  sixty 
of  the  record,  the  defendant's  counsel  is  represented  as  proposing 
to  read  some  of  the  testimony  taken  by  the  reporter  on  a  former 
trial,  and  the  record  then  states  that  permission  was  given  with- 
out objection.     But  the  testimony  does  not  appear. 

Let  it  be  assumed,  however,  for  the  present  purpose,  that  all 
the  evidence  is  given,  and  the  mind  is  at  once  struck  with  the 
circumstance  that  no  question  was  made  in  any  form  whatever 
at  any  time  during  the  trial  that  the  prosecutrix  was  unnuirried. 

The  defense  requested  no  charge  on  the  subject,  and  neviT 
intimated  or  indicated  that  there  was  any  intention  to  claim  that 
she  was  or  might  have  been  a  married  woman,  or  any  hint  of  a 
purpose  to  raise  any  controversy  upon  that  point.  From  begin- 
ning to  end  the  trial  proceeded  apparently  upon  a  tacit  under- 
standing that  no  question  of  her  being  unmarried  existed,  and 
that  no  inquiry  need  be  gone  into  in  regard  to  it. 

It  is  true  the  record  contains  no  direct  proof  of  the  fact  that 
she  was  unmarried  ;  but  the  circumstances  which  appear,  when 
received  in  connection  with  the  fact  that  her  being  unmarried 
was  treated  at  tiie  trial,  on  all  sides,  as  something  too  well  known 
and  certain  to  bo  noticed  and  inquired  about,  are  butiiciontly 
forcible  to  repel  the  charge  of  error. 


■Hi 


LEWIS  V.  PEOPLE. 


77 


Her  personal  history  so  far  as  shown,  her  exti'eme  youth,  the 
attitude  and  deportment  of  the  defendant  towards  lier,  her  posi- 
tion in  her  father's  household,  and  tlie  surrounding  circumstances 
i^'cnerally,  afford  very  convincing  evidence  tliat  she  was  a  mere 
girl  and  unmarried.  The  negative  evidence  may  not  be 
overlooked. 

Notwithstanding  the  nature  of  the  case  would  naturally  have 
directed  attention  to  her  having  been  married,  if,  in  truth,  she 
had  been,  and  the  fact  would  have  been  elicited,  still  there  was 
not  the  slightest  reference  to  any  such  thing.  Finally,  the  law 
was  in  the  way  of  her  marriage.  She  was  not  of  lawful  age, 
and  it  would  be  going  far  to  arbitrarily  suppose  she  may  have 
changed  her  condition  through  a  violation  of  law.  Upon  all  the 
facts  and  circumstances  the  jury  must  have  found  she  was 
unmarried,  and  without  stopping  to  see  whether,  in  strictness, 
some  direct  proof  would  be  generally  required,  the  court  is 
satisfied  that  this  verdict  ought  not  to  be  disturbed  for  want  of  it. 

The  point  was  not  made  below,  and  it  is  now  too  late  to  allege 
the  lack  of  evidence  direct  in  form,  there  being  abundance  of 
other  evidence. 

It  was  objected  that  no  evidence  could  be  given  of  tlie  con- 
duct and  appearance  of  the  prosecutrix  and  defendant  on  the 
day  following  that  of  the  alleged  act  of  intercourse.  The  objec- 
tion was  not  well  founded.  Proper  inquiry  of  that  kind  was 
relevant  to  ascertain,  or  helj)  ascertain,  whether  the  submission  of 
the  prosecutrix  had  boon  brought  about  by  seductive  njeans,  and 
the  inquiry  was  kept  witliin  due  linuts. 

It  was  likewise  objected  that  certain  offers  of  proof  by  the 
prosecuting  attorney,  wliich,  however,  the  court  overruled,  con- 
stituted error.  This  requires  no  comment.  It  is  not  pretended 
the  court  committed  any  fault  whatever.  The  proposition  pre- 
sents no  question  of  law. 

The  prosecutrix  testilied  that,  among  other  representations  t  j 
induce  her  to  yield,  the  defendant  told  her  that  certain  of  her 
3'oung  foiualo  school-tnates  allowed  such  liberties.  In  a  previous 
stage  of  her  testimony  she  had  given  the  luimes  of  two  of  these 
young  girls  of  whom  he  had  thus  spoken,  without  any  objection, 
and  she  was  at  length  asked  to  give  the  names  of  all.  Tiiis  was 
objected  to.  The  objection  has  no  force.  The  inquiry  was 
originally  proper  as  helping  to  explain  the  means  used  to 
accomplish  the  result,  and  having  ascertained  the  names  of  two 


•i  M 


1"    \ 

I;.     1: 


78 


AMERICAN  CRIMINAL  REPORTS. 


out  of  three  without  objection,  it  was  quite  right  to  call  for  the 

third. 

The  fifth,  sixth  and  eleventh  charges  of  error  merit  no  notice. 
Thej  are  plainly  frivolous. 

The  nintli  assignment  is  without  any  exception  to  support  it. 
The  tenth  complains  that  the  court  refused  to  permit  the  witness 
Porter  to  relate  to  the  jury  his  remarks  on  a  former  occasion  in 
regard  to  the  conduct  of  the  prosecutrix.  The  point  is  absurd. 
The  court  was  right. 

Several  assignments  based  on  the  charge,  although  not  aban- 
doned, are  not  much  pressed.  The  points  have  been  carefully 
examined,  and  they  are  not  perceived  to  present  any  substantial 
or  valid  objection  to  the  conviction.  A  particular  discussion 
would  be  tedious,  and  is  altogether  uncalled  for.  Objection  is 
made,  however,  to  that  part  of  the  charge  relative  to  the  seduc- 
tive means  necessary  to  be  shown,  and  to  what  was  said  about 
the  age  and  situation  of  the  prosecutrix,  and  in  regard  to  her 
testimony  before  the  examining  magistrate. 

It  is  argued  that  the  judge  assumed  aa  proved  some  of  the 
matters  necessary  to  siiow  that  there  were  seductive  means,  and 
also  improperly  introduced  considerations  to  lead  the  jury  to 
accept  the  relation  of  the  prosecutrix,  rather  than  that  of  the 
defendant,  as  to  whether  the  imputed  means  had  any  existence. 

In  view  of  this  complaint  we  have  very  carefully  scanned  the 
instructions,  which  are  too  long  to  bo  introduced  here,  and  do  not 
find  them  justly  exposed  to  the  criticism  passed  upon  theni. 
There  is  no  assumption  of  the  existence  of  any  expedient  alleged 
to  have  been  employed.  On  the  contrary,  the  jury  were  given 
clearly  to  understand  that  it  was  for  them  to  find  whether  or  not 
the  required  means  existed  and  were  used. 

It  appeared  that  on  the  examination  before  the  magistrate  the 
prosecutrix  had  stated  that  no  inducement  was  held  out  or 
promise  made  to  her.  In  commenting  on  this,  the  judge 
observed  to  the  jury  as  follows :  "  You  are  to  consider  tlio 
embarrassment  under  which  she  labored  at  the  time,  and  her 
intelligence  and  her  yonth,  whether  she  would  consider  it  in  the 
way  of  a  promise.  She  stated  very  plainly  that  he  didn't  hold 
out  any  inducements  to  her,  and  that  ho  didn't  make  any  prom- 
ises to  her.  The  word  marriage  she  thought  was  not  mentioned 
at  all.  You  are  to  consider  now  whether  a  girl  situated  as  slio 
was,  with  iior  tender  years  and  embarrassed  m  she  was,  would 


i 


BONKER  V.  PEOPLE. 


79 


volunteer  without  being  questioned — whetlier  slie  would  be  likely 
to  go  on  and  tell  all  that  was  said  about  love  and  marriage,  unless 
her  attention  was  called  to  it.  You  are  to  consider  that,  gentle- 
men, and  if  you  are  satisfied  that  she  told  the  truth  in  this  court 
with  regard  to  the  love  and  marriage,  and  he  induced  her  to  con- 
sent to  that  intercourse,  your  verdict  should  be  guilty." 

When  this  passage  is  coiisidered  in  connection  with  the  residue 
ol'  the  charge,  and  in  the  light  of  all  the  facts  before  the  jury, 
and  remembering  that  the  jury  had  opportunity  to  observe  the 
prosecutrix  during  her  long  examination  on  the  stand,  and  were 
in  a  situation  to  enable  tliem  to  form  an  opinion  of  her  intelli- 
gence, and  lier  liability  to  be  embarrassed,  it  seems  to  the  court 
that  the  judge  did  no  more  than  his  duty.  The  explanation  and 
caution  would  seem  to  have  been  reasonable  and  well-timed,  and 
we  think  the  complaint  against  it  is  not  justified. 

The  charge,  as  a  whole,  appears  to  have  been  fair,  and  we 
think  the  jury  were  not  misled  by  it. 

No  error  being  shown,  the  judgment  should  be  affirmed. 

CooLEY,  C.  J.,  and  Campbell,  J.,  concurred. 
Marston,  J.,  did  not  sit  in  this  case. 

Note. — For  a  full  coUoctiou  of  all  the  authorities  as  to  what  constitutes 
the  crime  of  seduction,  sec  note  to  People  v.  Clark,  1  Am.  Crim.  Rep.,  660. 


BoNKER  V.  People. 

(31  Mich.,  4.) 

Solemnization  of  UNiiAwruii  mahriaoes:  Cumulative  testimony  —  Guilty 
knowledge,  fiow  proMn —  Omlty  knowledge,  erroneous  charge  at  to  —  What 
witnf,im»  must  be  called  by  the  proMcutum. 

Tlio  Mlchijfan  statute  (Comp.  L.,  §  4729)  makes  it  a  misdemeanor  for  one  to 
solemnize  a  marrluge,  knowing  that  he  is  not  lawfully  autliorlzed  to  do 
BO,  or  that  there  is  a  legal  impediment  thereto.  Held,  to  apply  to  mar- 
riages not  authorized  by  law,  as  where  the  girl  is  under  tlie  ago  of 
consent. 

Where  a  justice  joined  in  marriage  a  girl  who  professed  to  be  of  the  age  of 
consent,  although  she  was  apparently  not,  it  was  held  competent  to  show 
that  his  family  and  her  father's  were  neighbors  and  acquaintances,  and 
that  at  her  marriage  he  did  not  inquire  for  hor  parents,  who  were  not 
present.    These  facts  tended  to  show  that  he  knew  tlie  girl's  age. 

The  rule  requiring  the  prosecution  to  call  every  attainable  witness,  where  tes- 
timony is  needed  to  disclose  any  part  of  the  transaction,  is  to  prevent  the 


ii  ™ 


m 


II 


f0, 


80 


AMERICAN  CRIMINAL  REPORTS. 


suppression  of  evidence,  and  does  not  make  it  always  necessary  to  call 
all  witnpsses,  particularly  where  their  testimony  woild  be  only  cumula- 
tive, or  where  it  appears  tliat  they  abetted  the  commission  of  the  oflfense, 
and  the  offense  is  not  a  crime  of  violence. 

When  guilty  knowledge  is  an  ingredient  of  the  ofifense,  there  need  not  usu- 
ally be  direct  proof  of  actual,  positive  knowledge,  but  the  jury  may 
infer  it  from  suspicious  circumstances,  such  as  apparently  intentional 
neglect  to  make  inquiry  before  engaging  in  a  doubtful  transaction. 

The  fact  of  guilty  knowledge  should  be  left  to  the  jury  to  determine  from  all 
the  circumstances. 

But  it  seems  that  a  charge  that  if  the  justice  "had  good  reason  to  believe,"  or 
"if  in  the  exercise  of  a  reasonable  discretion  he  had  reason  to  believe" 
that  the  girl  was  under  sixteen  years  of  age,  he  is  guilty,  is  erroneous. 

Eeror  to  Wayne.    Submitted  April  10.    Decided  June  12. 
Criminal  information,  under  the  statute,  against  unlawful  mar- 
riages.   Tlie  facts  are  in  the  opinion.  • 
Moore  t&  Moore,  and  J,  L.  Chipman,  for  plaintifE  in  error. 
OtU)  Kirchaer,  attorney-general,  for  the  people. 

CooLEY,  C.  J.  The  defendant  has  been  convicted  on  an  infor- 
mation which  charges  that  "  hei-etofore,  to  wit,  on  the  28tli  day 
of  February,  A.  D.  1876,  at  the  township  of  Huron,  in  said 
county  of  Wayne,  one  William  Bonker,  late  of  said  township, 
being  then  and  there  a  justice  of  the  peace  of  said  townsliip,  and 
in  and  for  said  county,  unlawfully  did  undertake  to  join  in  mar- 
riage Frank  Bogart  and  Ann  Eliza  Davis,  she,  the  said  Ann 
Eliza  Uavis,  being  tlien  and  there  a  female  under  the  ago  of  si.x- 
teen  years,  to  wit,  of  the  age  of  thirteen  years,  and  not  capable  '\\\ 
law  of  contracting  marriage;  and  the  age  of  the  &  i  Ann  Eliza 
Davis  being  then  and  there  a  legal  impediment  to  lie  said  pro- 
posed marriage,  he,  the  said  William  Bonker,  then  and  there, 
and  at  the  time  he  undertook  to  join  the  said  Frank  Bogart  and 
the  said  Ann  Eliza  Davis  in  marriage,  well  knowing  that  the  said 
Ann  Eliza  Davis  was  then  and  there  a  female  under  the  age  of 
si.xteen  years,  c  >ntrary  to  the  fonn  of  the  statute,  etc. 

On  the  trial  the  main  facts  appear  to  have  been  undisputed. 
The  girl  was  the  daughter  of  one  Daniel  T.  Davis,  who  lived  in 
the  same  township  with  defendant,  and  the  two  had  known  ea(!h 
other  for  three  or  four  years,  and  had  had  some  business  dealings 
of  no  great  importance. 

A  part  of  that  time  they  resided  within  a  mile  of  each  other, 
and  the  girls  of  the  two  families  seem  to  liave  been  acquainted. 
The  girl  tet,titied  that  she  had  known  defendant  about  four  years, 


BONKER  V.  PEOPLE. 


81 


Rsary  to  call 
nly  cumula- 
tbe  offense, 

!ed  not  usu- 
e  jury  may 
inteutional 
Jtion. 
line  from  all 

believe,"  or 
to  believe" 
roneous. 

^une  12. 
iwful  mar- 

a  error. 


1  an  infor- 
1  28tli  day 
>n,  in  eaid 
township, 
iisliip,  and 
n  in  mar- 
Bald  Ann 
igo  of  six- 
capablo  in 
\nn  Elixa 
!  said  pro- 
md  tliore, 
5o<>jart  and 
\t  tiiu  said 
the  ago  of 

ndisputcd. 
lo  lived  in 
lown  eacih 
is  dc>alin<rs 

lach  other, 
cquainted. 
tour  years, 


and  the  record  does  not  show  that  this  fact  was  disputed  by  him. 
At  the  time  of  the  marriage  she  was  in  the  employ  of  one  Hem- 
stock,  about  forty  rods  from  and  in  sight  of  her  father's  house. 
An  arrangement  was  lixed  up  between  Mr.  and  Mrs.  Hemstock 
and  Bogart  for  the  marriage  of  the  latter  to  the  girl,  and  the 
defendant  eoming  along  in  the  road  with  one  Nowland,  Bogart 
went  out  md  called  him  in  to  marry  them.  When  he  came  in 
he  asked  the  girl  how  old  she  was,  and  she  replied  sixteen. 

Her  testimony  was  that  she  made  this  statement  under  the 
instructions  of  the  Hemstocks  and  Bogart,  but  they  denied  this. 
She  was,  in  fact,  but  thirteen  years  of  age.  Without  taking  any 
precautions  beyond  this  simple  inquiry,  and  without  the  presence 
ur  knowledge  of' any  of  the  girl's  family,  the  defendant  proceeded 
with  the  marriage  ceremony.  These  facts,  it  must  be  conceded, 
iiiiike  out  a  very  gross  case  of  abuse  of  official  authority,  and  it 
ivinains  to  see  whether  any  of  the  exceptions  taken  to  the  con- 
viction can  be  supported. 

I.  It  is  claimed  that  the  inforjration  makes  out  no  case  under 
the  statute.  The  information  wae  filed  under  section  4729  of  the 
Compiled  Laws,  which  provides  that  "  if  any  person  shall  under- 
take to  join  others  in  marriage,  knowing  that  he  is  not  lawfully 
authorized  to  do  so,  or  knowing  of  any  legal  impediment  to  the 
proposed  marriage,  he  shall  be  deemed  guilty,"  etc.  The  argu- 
ment on  the  part  of  the  defendant  is,  that  an  "  impediment "  is 
that  only  which  absolutely  precludes  a  marriage  being  formed — 
such  as  relationship  within  the  prohibited  degrees,  or  a  previous 
marriage  not  dissolved — and  that  as  the  marriage  of  a  party  under 
the  ago  of  consent  would  not  be  void,  but  only  voidable,  the 
want  of  age  could  not  constitute  an  impediment.  This  argu- 
iiieut  would  apply  equally  well  to  a  marriage  accomplished  by 
fraud  or  force — such  marriages  being  voidable  only — and  would 
protect  the  magistrate,  though  the  facts  were  all  known  to  him. 
We  doubt  the  validity  of  the  argument,  and  should  be  inclined 
to  hold  that  whatever  is  in  the  way  of  a  valid  marriage  must  be 
understood  to  constitute  such  an  impediment  as  the  statute  has  in 
view.  The  statute  authorizes  certain  marriages,  and  does  not 
authorize  others ;  it  points  out  what  shall  prevent  or  impede 
them.  But  it  is  not  necessary  to  rest  the  case  upon  this  view, 
for  when  the  statute  does  not  authorize  a  certain  marriage,  a 
magistrate  cannot  be  "  authorized  "  to  join  the  persons  in  mar- 
riage. The  ago  of  consent  in  a  female  is,  by  the  statute,  fixed  at 
Vou  11.-0 


! 


It  I 


f 


82 


AMERICAN  CRIMINAL  REPORTS. 


sixteen  yeai-s ;  and  though  the  law,  in  view  of  the  serions  conse- 
quences  that  might  follow  from  treating  all  marriages  as  void 
where  one  of  the  parties  is  under  the  age  of  consent,  holds  them 
to  be  voidable  only,  it,  nevertheless,  does  not  authorize  them. 
Like  a  fraudulent  marriage,  they  are  unautho'  '/ed,  for  consent  is 
the  iirst  requisite  in  marriage,  and  in  these  cases  the  capacity  to 
consent  is  withheld  by  law. 

II.  Exception  was  taken  to  the  admission  of  evidence  to  show 
tiiat  the  families  of  defendant  and  Davis  were  acquainted,  and 
that  at  the  time  of  the  ceremony  defendant  made  no  inquiry  for 
the  girl's  parents.  This  evidence  bore  strongly  on  the  proba- 
bility of  defendant's  knowledge  that  his  act  was  unwarranted, 
and  we  have  no  doubt  was  properly  received.  It  tended  to  shoM- 
that  he  must  have  had  some  knowledge  of  the  girl's  age,  and  it 
put  before  the  jury  the  extremely  suspicious  circuni.staiiee  that 
in  the  immediate  vicinity  of  her  father's  house  he  was  willing, 
without  the  presence,  and,  so  far  as  he  knew,  the  knowledge  of 
her  parents,  to  join  in  marriage  a  girl  who,  even  if  she  were  six- 
teen, would  be  unfit  to  act  in  so  important  a  matter  upon  her 
own  judgment. 

III.  The  third  exception  was  to  the  refusal  of  the  court  to 
require  the  prosecution  to  put  upon  the  stand  as  witnesses  for 
the  people  Mr.  and  Mrs.  Ilemstock,  Bogart  and  Nowland. 
There  was  nothing  in  the  case  to  indicate  that  Nowland  could 
have  given  material  evidence;  it  only  ajjpeared  that  he  was  in 
the  road  with  defendant  when  the  latter  was  called  in,  and  that 
was  no  part  of  the  res  gestm.  The  record  discloses  no  fact  that 
renders  it  at  all  material  that  defendant  was  called  in  by  one  person 
rather  than  by  another,  or  what  was  said  in  calling  him  iii^  or 
how  he  came  to  be  present.  The  res  yestcG  began  with  his  pres- 
ence in  the  house.  Evidence  as  to  how  or  why  he  came  to  be 
there  was  proper  as  introductory  or  oxj)lanatory,  but  nothing 
depended  on  it.  The  claim  that  the  other*''  should  have  been 
called  by  the  prosecution  is  made  in  reliance  upon  Malier  v. 
People,  10  Mich.,  212,  and  Hurd  v.  People,  25  Mich.,  4(>5. 

One  of  these  cases  was  an  information  for  murder,  and  the 
other  for  an  assault  with  intent  to  commit  murder,  and  the  i)rin- 
ciple  deducible  from  them  is  that  "the  prosecutor  in  a  criminal 
case  is  not  at  liberty,  like  a  plaintiff  in  a  civil  case,  to  select  out 
a  part  of  an  entire  transaction  which  nuikes  against  the  defend- 
ant, and  then  to  put  the  defendant  to  tlio  proof  of  the  other 


BONKER  «.  PEOPLE. 


83 


part,  so  lonff  as  it  appears  at  all  probable  from  the  evidence  that 
there  may  be  any  other  part  of  the  transaction  undisclosed; 
especially  if  it  appears  to  the  court  that  the  evidence  of  the 
other  portion  is  attainable."  "If  the  facts  stated  by  [the  wit- 
nesses] who  are  called,  show  priina  facie,  or  even  probable 
reason  for  believing  that  there  are  other  parts  of  the  transaction 
to  which  they  have  not  testified,  and  which  aio  likely  to  be 
known  by  other  witnesses  present  at  the  transaction,  then  such 
other  witnesses  should  be  called  by  the  prosecution,  if  attainable : 
25  Mich.,  416,  417.  These  cases  are  really  aimed  at  a  suppres- 
sion of  evidence  by  management,  and  they  do  not  decide,  as  is 
claimed,  that  all  the  witnesses  to  a  transaction  must  necessarily 
be  called  by  the  prosecution ;  the  justice  of  requiring  this  must 
de-  d  upon  circumstances,  and  it  would  seldom  be  as  manifest 
in  cases  of  mere  misdemeanor  as  in  cases  of  higher  offenses, 
especially  those  accomplished  by  violence.  But  in  this  case 
there  was  no  reason  to  suppose  that  the  prosecution  had  failed  to 
put  all  parts  of  the  transaction  before  the  jury  by  its  evidence, 
and  the  testimony  of  other  by-standers  could  only  have  been 
cumulative.  Moreover,  the  connection  of  the  Hemstocks  and 
Bogart  witli  the  affair  was  such  as  fairly  to  excuse  their  being 
called.  They  must  have  known  a  great  wrong  was  being  perpe- 
trated, and  they  w^re  assisting,  and  one  of  them  a  principal  in 
it.  Had  it  been  a  crime  of  violence,  their  connection  with  it 
was  such  as  would  have  justified  the  state  in  making  them  parties 
defendant,  and  though  this  statute  does  not  provide  for  punish- 
ing them,  we  cannot  say  that  the  court  erred  in  not  requiring 
the  prosecution  to  give  credit  to  their  testimony  by  calling  them. 
Th^  were  present  in  court,  and  the  defendant  had  the  benefit 
of  their  testimony  afterwards,  and  if  the  court  had  any  discre- 
tion in  the  premises,  as  we  think  it  had,  the  discretion  was 
not  abused. 

IV.  A  further  question  ariues  upon  the  instructions  to  the 
jury.  One  of  them  was,  "  If  you  think,  from  the  appearance  of 
the  girl,  and  from  the  testimony  in  the  case,  that  the  defendant, 
although  he  could  not  have  known  positively  what  her  age  was, 
but  if  he  had  good  reason  to  believe  from  all  these  facts  that  she 
Wiw  under  the  age  of  sixteen,  then  their  verdict  must  be  guilty." 
Anil  again,  that  if,  in  the  exercise  of  a  reasonable  discretion,  ho 
had  reason  to  believe  she  was  not  sixteen,  then  he  must  bo 
deemed  to  have  united  them  in  nuirriage  knowing  tiiere  was  a 


:•!■■ 


mm 


84 


AMERICAN  CRIMINAL  REPORTS. 


m 


i 


legal  impediment.     These  cliarges  are  objected  to  as,  in  effect, 
making  negligence  the  equivalent  of  guilty  knowledge. 

N^o  doubt,  where  guilty  knowledge  is  an  ingredient  in  the 
offense,  the  knowledge  roust  be  found ;  but  actual,  positive 
knowledge  is  not  usually  required.  In  many  cases,  to  require 
this  would  be  to  nullify  the  peual  laws.  The  case  of  knowingly 
passing  counterfeit  money  is  an  illustration;  very  often  the 
guilty  party  has  no  actual  knowledge  of  the  spurious  character 
of  the  paper,  but  he  is  put  upon  his  guard  by  circumstances 
which,  with  felonious  intent,  he  disregards.  Another  illustration 
is  the  case  of  receiving  stolen  goods,  knowing  them  to  be  stolen; 
the  guilt  is  made  out  by  circumstances  which  fall  short  of  bring- 
ing home  to  the  defendant  actual  knowledge.  He  buys,  perhaps, 
of  a  notorious  thief,  under  circumstances  of  secrecy,  and  at  a 
nominal  price,  and  the  jury  rightfully  hold  that  these  circum- 
stances apprise  him  that  a  felony  must  have  been  committed: 
Andrews  v.  People,  60  111.,  354 ;  Schriedley  v.  State,  23  Ohio 
St.,  130.  If,  by  the  statute  now  under  construction,  actual  ])er- 
sonal  knowledge  is  required,  the  statute  may  as  well  be  repealed, 
for  it  can  seldom  be  established,  even  in  the  grossest  cases.  How 
many  justices  are  likely  to  know  the  exact  age  of  all  the  girls  in 
their  township  approaching  the  age  of  consent  ?  or  even  of  all 
those  in  their  immediate  neighborhood,  except  as  they  rely  upon 
reputation  or  family  report?  Or,  in  how  many  can  they  testify, 
of  their  own  knowledge,  that  a  young  man  and  a  young  woman 
living  as  inmates  of  the  same  family,  and  recognized  as  brother 
and  sister,  do  in  fact  be<ar  that  relation  to  each  other  ?  or,  that 
one  who  comes  to  be  married  has  not  a  wife  living  from  whom 
he  is  not  divorced  ?  Indeed,  in  the  great  majority  of  casdl  one 
must  obtain  his  knowledge  as  to  the  existence  of  legal  impedi- 
ments from  common  report,  from  the  statements  of  third  parties, 
from  any  sources,  in  fact,  upon  which  individuals  would  rely  in 
investigating  for  their  own  protection  into  such  facts,  and  he 
would  justly  be  deemed  inexcusable  if  ho  should  persistently 
shut  liis  eyes  to  such  facts  as  were  apparent  to  everybody  else. 

We  think  there  is  no  doubt  that  in  this  case  the  jury  would 
have  been  warranted  in  finding,  on  the  facts  which  appear,  that 
the  defendant  had  knowledge  of  the  impediment,  had  the 
instructions  been  such  as  the  defendant  insists  they  should  be. 
One  fact  not  hitherto  stated  would  have  been  regarded  as  very 
significant,  namely,   that  the  defendant,  althougli  required   by 


NORRIS  V.  STATE. 


85 


as,  in  effect, 


?e. 


3  lent  in  the 
lal,  positive 
5,  to  require 
:  knowiu{i;ly 
<^  often  the 
us  character 
Tcumstances 
r  illustration 
bo  be  stolen ; 
)rt  of  bring- 
iiys,  perhaps, 
3y,  and  at  a 
liese  circum- 

comniitted: 
ite,  23  Ohio 
,  actual  per- 
be  repealed, 
cases.  How 
.  the  girls  in 

even  of  all 
ay  rely  upon 
they  testify, 


4 

t 


statute  to  examine  one  of  the  parties  on  oath,  neglected  to  do  so : 
Comp.  L.,  §  4726,  This,  in  view  of  the  extreme  youth  of  the 
girl,  wa3  a  very  significant  fact,  and  looks  like  a  careful  avoid- 
ance of  the  proper  means  of  information.  Had  he  taken  the 
proper  evidence  under  oath  and  been  deceived,  perhaps  he  would 
Jiave  heen  justified,  even  though  he  had  had  reason  to  believe  the 
age  of  consent  had  not  been  reached ;  but  where  he  neglects  the 
testimony  whicli  he  is  required  to  take,  and  pretends  to  rely 
upon  the  less  satisfactory  oral  statement,  which  he  is  not  required 
to  take,  the  neglect  may  well  be  imputed  to  illegal  intent. 

But  the  question  whether,  on  the  evidence,  the  jury  ought  to 
have  found  that  the  defendant  had  guilty  knowledge  is  not  the 
same  as  the  question  presented  here.  We  are  not  agreed  that 
the  charge  of  the  circuit  jndge  can  be  supported,  though  some 
of  our  number  are  inclined  to  think  it  may  be.  The  better 
course,  unquestionably,  would  have  been  for  the  circuit  judge  to 
have  submitted  all  the  facts  to  the  jury,  and  to  have  allowed 
them  to  draw  their  own  conclusions  regarding  the  knowledge  of 
the  defendant  that  he  was  proceeding  unlawfully.  It  is  to  be 
presumed  that  the  jury  would  have  dealt  intelligently  with  the 
facts,  and  not  permitted  a  reckless  official  to  have  set  at  naught, 
with  impunity,  the  provisions  of  a  statute  which  has  for  its 
object  the  prevention  of  unfit,  immoral  and  scandalous  marriages. 

The  circuit  court  will  be  advised  to  grant  a  new  trial. 

The  other  justices  concurred. 


ll 


NoRRis  V.  State. 
(25  Ohio  St.,  217.) 

False  Pretenses:    Person  defined  —  Locality  of  offeme  —  Indiefymnt — Wh<U 

averments  are  sufficient. 

In  section  twelve  of  the  crimes  act,  as  amended  February  21,  1878,  declaring 
"  that  if  liny  person,  by  any  false  pretense  or  pretenses,  shall  obtain  from 
any  other  person,"  etc.;  the  word  "person,"  in  the  latter  phrase,  includes 
arlificial  as  well  as  natural  persons. 

An  indictmout  for  obtaining  goods  by  false  pretenses  is  sulHcicnt,  if  it  allege 
that  the  goods  were  obtained  by  the  defendant  by  nieann  of  the  false  pre- 
tenses, and  with  the  fraudulent  intent  piirticularly  stated,  without  other 
averment  that  tlie  owner  relied  upon  tliem,  and  was  induced  thereby  to 
part  with  the  goods 


r.  I 


>m 


;-' 


86 


AMERICAN  CKIMINAL  REPORTS. 


Where  A,  by  false  pretenses  contained  in  a  letter  sent  by  mail,  procures  the 
owner  of  goods  to  deliver  them  to  a  designated  common  carrier  in  one 
county,  consigned  to  the  writer  in  another  county,  the  oflfense  of  obtain- 
ing goods  by  false  pretenses  is  complete  in  the  former  county,  and  the 
offense  must  be  prosecuted  therein. 

Error  to  the  common  pleas  of  Clark  county. 

The  indictment  is  for  obtaining  goods  by  false  pretenses,  and 
was  found  at  the  January  term  of  the  court  of  common  pleas  of 
Clark  county,  Ohio,  A.  D.  1871,  under  a  statute  passed  and  which 
took  effect  February  21,  1873  (70  Ohio  L.,  39),  which  provides: 

"  That  if  any  person,  by  any  false  pretense  or  pretenses,  shall 
obtain  from  any  other  person  any  money,  goods,  chattels,  etc.^ 
*  *  *  with  the  intent  to  cheat  and  defraud  the  owner  of  said 
money  or  property,  •*  *  *  he  shall,  on  conviction  thereof,  if 
the  value  of  said  money  or  property  so  obtained  *  *  *  shall 
be  equal  to  or  exceed  $35,  be  imprisoned  in  the  penitentiary  not 
more  than  three  years,  nor  less  than  one  year,"  etc. 

The  substantive  part  of  the  indictment  under  which  the  pris- 
oner was  tried,  convicted  and  sentenced,  is  as  follows  : 

"  That  John  T.  Norris,  late  of  the  county  of  Clark  aforesaid, 
on  the  24th  day  of  September,  A.  D.  1873,  at  the  county  of 
Clark  aforesaid,  did  unlawfully,  feloniously  and  falsely  pretend 
to  the  Akron  Sewer-pipe  Company — the  said  Akron  Sewer-])! pe 
Company  then  and  there  being  an  incorporated  company,  and 
doing  business  as  such  incorporated  company  under  anr"  by  virtue 
of  the  laws  of  Ohio — that  he,  the  said  John  T.  Norris,  was  then 
and  there  the  owner  of  a  farm,  known  as  the  Mohawk  Small  Fruit 
Farm,  one  and  a  half  miles  east  of  the  city  of  Springfield,  in  said 
county  of  Clark,  and  on  the  Charleston  pike,  and  did  then  and 
there  unlawfully,  feloniously  and  falsely  pretend  that  he,  the 
said  John  T.  Norris,  was  then  and  there  a  person  of  good  finan- 
cial responsibility  by  referring  the  said  Akron  Sewer-pipe  Com- 
pany to  any  business  firm  of  the  city  of  Springfield,  and  did 
unlawfully,  feloniously  and  falsely  pretend  that  any  of  the  busi- 
ness firms  of  the  said  city  of  Springfield  would  indorse  and  recom- 
mend the  said  John  T.  Norris  to  the  said  Akron  Sewer-pipe  Com- 
pany as  a  person  then  and  there  worthy  of  credit  and  trust  by  said 
Akron  Sewer-pipe  Company,  by  which  said  false  pretenses  the 
said  John  T.  Norris  then  and  there  unlawfully  and  feloniously 
did  obtain  from  the  said  Aki-on  Sewer-pipe  Coni])any  certain 
sewer-pipe  of  the  value  of  §^l:1.90,  of  tiic  property,  goods  and 


NORRIS  V.  STATE. 


87 


cliattels  of  the  said  Akron  Sewer-pipe  Company,  with  the  intent 
then  and  thereby,  by  the  said  false  pretenses  aforesaid,  to  induce 
the  said  Akron  Sewer-pipe  Company  to  deliver  to  him,  the  said 
John  T.  Norris,  the  sewer-pipe  aforesaid,  without  making  any 
inquiry  as  to  the  financial  responsibility  of  him,  the  said  John  T. 
T^orris,  and  with  intent  then  and  there,  by  the  false  pretenses 
aforesaid,  to  cheat  and  defraud  the  said  Akron  Sf.wer-pipe  C.oni- 
paiiy  of  the  sai<l  sewer-pipe  aforesaid,  wheiori.;,  in  truth  and  in 
fact,  the  said  John  T.  Norris  was  not  then  and  there  the  owner 
of  the  said  farm  known  as  the  Mohawk  Sm;i!,  Fruit  Farm,  one 
and  a  half  miles  east  of  the  city  of  Sj)ringfiel<i  in  the  county  of 
Clark;  and  whereas,  in  truth  and  in  fact,  the  business  firms  of 
tlie  city,  of  Springfield  would  not  then  and  there  indorse  and 
recommend  the  said  John  T.  Norris  then  and  there  to  be  a  per- 
son of  good  financial  responsibility ;  and  whereas,  in  truth  and  in 
fact,  the  business  firms  of  the  city  of  Springfield  would  not  then 
and  there  recommend  him,  the  said  John  T.  Norris,  to  the  said 
Akron  Sewer-pipe  Company  to  be  a  person  then  and  there 
worthy  of  trust  and  credit  by  said  Akron  Sewer-pipe  Company, 
and  the  said  John  T.  Norris  was  not  then  and  there  a  person  of 
good  financial  responsibility,  and  the  said  John  T.  Norris,  at  the 
time  he  so  falsely  pretended  as  aforesaid,  well  knew  said  false 
pretenses  to  be  false,  contrary,  etc." 
Keifcr  (&  White  and  John  II.  Littler,  for  the  plaintiff  in  error : 
I.  When  the  word  "  person  "  is  used  in  the  statute,  especially 
a  criminal  statute,  a  natural  person  is  intended,  unless  something 
appears  in  the  act  to  show  that  it  applies  to  artificial  persons : 
lUair  V.  Worley,  1  Scam.,  178 ;  Betts  v.  Menard,  1  Breese,  395. 
Section  227  of  the  Criminal  Code,  and  the  acts  defining  certain 
crimes  (S.  and  C,  40J>,  section  22  ;  412,  421,  422,  426 ;  408,  sec. 
18;  439,  sec.  15  ;  and  S.  and  S.,  265,  269,  273),  clearly  show  that 
the  general  assembly  has  not,  except  by  special  provision,  con- 
strued the  word  person,  in  criminal  acts,  to  include  corporations. 
We  claim  fur  the  plaintiff  a  strict  construction  of  the  statute 
under  which  he  is  indicted. 

The  indictment  is  defective  in  this :  it  does  not  set  forth  that 
the  owner  of  the  property  relied  upon  the  false  representations, 
and  was  induced  by  means  thereof  to  part  with  his  property  : 
State  V.  Phi/hrf'd%  31  Maine,  401 ;  Com.  v.  Strain,  10  Met.,  .521 ; 
Pf^nj>/e  V.  Sl'iff,  2  Park  Cr.,  140  ;  Peoj}le  v.  Ilerrich,  13  Wend., 
87 ;  Peojylc  v.  Stetson,  4  Barb.,  151 ;  EtuJers  v.  I*eoj)le,  20  Mich., 


f 


!i 


1' 


88 


AMEIUCAN  CUIMINAL  UKPORTS. 


233',  State  v.  .E>'c'i'.s,  49  Mo.,  542;  State  v.  Green,  7  Wis.,  C7G; 
Jiex  V.  Goodalf,  Brit.  Cro.  Cas.  (R.  and  R.),  5G1. 

The  iiKlictinent  should  aver  all  tlie  material  facts  which  it  is 
necessary  to  prove  to  prodiu'o  a  conviction,  and  with  such  reasoii- 
al)Ie  certainty  as  to  advise  the  accused  what  he  may  expect  to 
nieet  on  the  ti-ial :  Dillingham  v.  The  State,  5  Ohio  St.,  280  ; 
Lamlcrton  i\  State,  11  Ohio,  2S2 ;  Farris  v.  State,  3  Ohio  St., 
171 ;  Rohhins  V.  State,  8  Ohio  St,,  114. 

II.  The  court  erred  in  charging  the  ^'ury  as  to  the  venue. 
Bodily  presence  in  a  county  is  not  essential  in  determining  the 
place  of  trial :  People  v.  Adams,  3  Denio,  190 ;  Adat/i.s  v. 
J'eople,  1  Com.,  173. 

Norris  was  to  pay  the  freight ;  the  goods  were  shii)ped  at  his 
risk,  and  he  had  specially  pointed  out  the  carrier. 

Delivery  of  goods  to  a  carrier  in  the  usual  course  of  business 
is  equivalent  to  a  delivery  to  a  purchaser. 

The  carrier  is  always  considered  the  agent  of  the  buyer :  Story 
on  Sales  (Perkins,  3d  ed.),  sec.  306,  and  notes  2,  3  and  4  to  said 
section  ;  Ilooben  v.  Bidwell,  IG  Ohio,  510  ;  Coin.  v.  Tat/lor,  105 
Mass.,  172 ;  Redfield  on  Carriers,  section  302  ;  People  v.  Ilaynes, 

14  Wend.,  546 ;  Magruder  c&  Bra.  v.  Gage,  3  Am.  Rep.,  177;  Story 
on  Sales,  section  306,  note  4 ;  Brown  on  Carriers,  477 ;  Hooper  v. 
Chicago  cfe  iV^.  W.  R.  R.  Co.,  9  Am.  Rep.,  439 ;  Dunlap  v.  Lam- 
bert, 6  CI.  and  Fin.,  600. 

As  to  when  title  to  goods  passes  by  delivery  to  a  carrier,  see  5 
Ohio,  89 ;  Story  on  Sales,  sections  321,  342  ;  Newhall  v.  Vargex, 

15  Me.,  314;  Kendler  v.  Ellison,  47  N.  Y.,  36 ;  2  Kent  Com., 
433 ;  Mills  V.  Ball,  2  B.  and  P.,  461 ;  Openheim  v.  RmseU,3  B. 
and  P.,  54;  People  v.  Ilaynes,  14  Wend.,  5,  46,  and  cases  there 
citcvl ;  Com.  v.  Taylor,  105  Mass.,  172. 

The  crime  is  only  complete  when  and  where  the  goods  are 
oi)tained :  P>ish.  Cr.  Pr.,  sections  69,  70,  73 ;  1  Bisli.  Cr.  Law, 
sections  79-83,  107;  2  Whar.  Cr.  Law,  sections  2141,  2142; 
Adams  V.  People,  3  Denio,  190;  Same,  1  Comst.,  173;  Com.  v. 
Taylor,  105  Mass.,  192;  I'eople  v.  Ilaynes,  14  Wend.,  540; 
Grijfia  v.  State,  20  Ga.,  493  ;  P(nple  v.  Rathhun,  21  Wend.,  509 ; 
Com.  V.  Wanding,  3  P-'ck.,  3(i4  ;  /Wple  v.  Grijjin,  2  Barb.,  427; 
Peop)le  0.  Sully,  5  Park.,  142;  Whar.  Cr.  Law,  section  154; 
Com.  V.  Gillespie,  7  S.  iiiid  li,.  l«;i> ;  R,g.  v.  Leech,  Dears.,  642; 
RejB  V.  Brims  S  Scotf,  -t  Kast,,  Iti;),  171  ;  Sn/rn/  r.  Freeman,  'J 
B.  and  P.,  381,  382;  Mr  v.  Garrett,  22  Kng.  L.  and  Kq.,  607; 


1 


NORRIS  V.  STATK 


Rex  V.  Johnson,  6  East.,  583 ;  Itegina  v.  Jones,  1  Den.  C.  C, 
551 ;  Regina  v.  Jones,  1  Eng.  L.  and  Ec^.,  533. 

There  is  no  analogy  between  tlio  larceny  of  goods  and  the 
obtaining  of  goods  by  false  pretenses  in  one  county  and  carried 
by  the  offender  to  another,  as  to  where  the  offender  might  be 
apprehended  and  tried.  In  the  latter  case  it  must  be  in  the 
comity  where  the  goods  were  obtained :  Regina  v.  Stanhernj, 
0  Cox  C.  C,  94;  Fisher's  Digest,  169. 

III.  The  court  erred  in  its  charge  to  the  jury  on  the  question 
of  the  value  of  the  goods. 

If  the  court  erred  in  charging  upon  the  question  of  venue, 
then  the  charffe  was  right  on  the  question  of  value.  But 
if  the  court  was  right  in  its  charge  on  the  former  question,  then 
it  follows  that  it  erred  in  its  charge  on  the  latter. 

If  the  goods  were  not  obtained  by  the  accused  until  they 
reached  him  in  Clark  county,  then  their  value  must  be  ascer- 
tained in  their  condition  where  so  obtained. 

The  price  agreed  to  be  paid  for  the  goods  is  immaterial,  as  it 
is  their  real  market  value  at  the  time  they  are  obtained,  which  the 
jury  must  find  and  act  upon  in  fixing  the  punishment  under  the  law. 

John  Little,  attorney-general,  for  lae  state : 

1.  "  Person "  is  a  technical  word,  and  comprehends  in  its 
definition  artificial  as  well  as  natural  persons. 

And  where  a  word  of  a  fixed  moaning  is  used  in  a  statute,  the 
legal  presumption  is  that  the  legislature  intended  to  use  it  in  its 
legal  sense:  Tarney  v.  Yeoman,  14  Ohio,  207;  Anderson  v. 
MHUken  et  at.,  9  Ohio  St.,  568.  Courts  will  look  to  the  object 
of  a  statute :  Burgett  v.  Burgett,  1  Ohio,  469 ;  Ohio  Digest, 
670,  and  authorities  cited. 

The  question  raised  here  has  been  decided  in  Allen  v.  The 
State,  10  Ohio  St.,  287. 

2.  The  act  30  Geo.  II.,  c.  24,  is  identical  with  ours  in  not 
fixing  the  venue,  etc.  Under  it  was  held  that  the  proseciition 
sli(juld.b(i  had  at  the  place  where  the  goods  were  obtained,  to 
wit,  received,  and  not  where  the  false  pretenses  were  made:  1 
Chitty  Crim.  Law,  191 ;  2  lb.,  99S  ;  4  Barn,  and  Ad.,  179.  See 
IW'oe's  C^r.  Kv.,  6  ed.,  453;  PeojyJe  v.  Sully,  5  Parker,  142, 
170;  2  Whar.,  sees.  2142,  20SI;  21  ,/jnd.,  507;  9  Gray,  97;  3 
Oroenl.  Ev.,  sec  153  ;  1 1  Ohio,  438. 

A  portion  oF  these  authorities  are  in  point  on  the  hypothesis 
tliat  tliis  offense  is  akin  to  lurcouv. 


11' 


1  ■  5  .' 


1' 


90 


AMERICAN  CRIMINAL  REPORTS. 


I     i: 


The  relation  of  agent  for  vendor  or  vendee  of  a  carrier,  is  one- 
created  by  law,  and  only  exists  when  there  is  a  sale  or  other 
legitimate  transaction  between  the  contracting  parties.  But,  in 
this  instance,  there  was  no  sale.  There  was  neither  vendor  nor 
vendee.  The  crime  of  the  defendant  vitiated  the  whole  transac- 
tion. The  title  of  the  property  never  passed  to  Norris,  but 
remained  in  the  company  even  after  actual  delivery  to  Norris  at 
Springfield.  "When  he  took — "  obtained  " — the  goods  at  Spring- 
iield,  he  took  them  animus  furandi,  from  the  company. 

The  law  creates,  as  has  been  said,  the  rehition  of  agent  between 
the  carrier  and  vendor  or  vendee,  etc.  It  would  not,  it  is  sub- 
mitted, interpose  to  create  that  or  any  other  relation  between  a 
carrier  and  a  criminal,  to  enable  the  latter  to  carry  off  his 
plunder. 

There  is  no  necessary  logical  connection,  as  it  seems  to  me, 
between  the  question  of  venue  and  that  of  the  place  where  the 
goods  must  be  valued.  There  is  none  such  in  larceny,  and  why 
should  there  be  here  ?  If  the  position  assumed  by  counsel  for 
plaintiff  in  error  be  correct,  then  all  a  criminal  would  have  to  do 
to  escape  the  penalty  of  the  law  in  8U,".li  case,  would  be  to  ship 
the  goods  to  different  counties  in  quantities  of  less  than  $35 
worth  to  each.  In  other  words,  the  question  of  the  defendant's 
guilt  would  depend  upon  his  disposition  of  the  goods — upon 
whether  he  scattered  or  kept  them  together. 

GiLMOKK,  J.  There  are  a  number  of  errors  assigned  in  the* 
record,  upon  which  the  plaintiff  in  error  asks  for  a  reversal  of 
the  proceedings  and  sentence  against  him  in  the  court  below. 

It  will  bo  necessary  to  notice  only  tlic  first  three  assigned, 
which  are  substantially  : 

1.  That  the  facts  stated  in  the  indictment  do  not  constitute 
an  offense. 

2.  That  th  .  oourt  erred  in  its  charge  to  tlie  jury  on  the  ques- 
tion of  venue. 

3.  Tiiat  the  court  erred  in  its  charge  to  the  jury  on  the  ques- 
tion of  the  value  of  the  goods. 

Two  objections  are  urged  to  the  indictment:  Fimt.  That  the 
ftwner  of  tlie  goods  alleged  to  have  been  fraudulently  obtained  is 
III!  incorporated  company,  and  therefore  not  a  "person,"  within 
the  meaning  of  the  statute. 

In  support  of  this  proposition  two  cases  are  cited:    One — 


NORRIS  0.  STATE. 


m 


Blair  v.  Wbrley,  1  Scam.,  178 — decides  that  a  statute  giving  the 
right  to  remove  fences  made  bj  mistake  upon  the  lands  of  ot/ier 
persons,  applies  only  to  natural  persons,  and  not  to  the  United 
States,  or  the  state  of  Illinois.  The  other — Betts  v.  Menard, 
1  Broese,  395 — decides  that  the  ferry  law  does  not  authorize  a 
county  court  to  grant  a  license  to  ferry  to  a  corporation,  giving 
as  one,  among  other  reasons,  that  the  law  requires  that  the  party 
receiving  the  grant  shall  give  bond,  etc.,  "  conditioned  that  Ke, 
she,  or  they  will  keep  the  ferry  according  to  law."  The  terms 
used  in  the  statutes  referred  to  in  these  cases  respectively, 
exclude  the  idea  that  corporations  were  intended  to  be  included. 

But  it  is  insisted  that  the  rule  of  strict  construction  in  this 
respect  must  be  applied  in  this  case,  and  that  the  crime  "  can 
only  be  committed  by  a  '' person'*  against  the  property  of 
another  ''person^  who  must  be,  in  either  case,  a  natural  per- 
son." 

It  is  well  settled  that  the  rule  of  strict  construction  is  not 
violated  by  giving  the  words  of  a  statute  a  reasonable  meaning 
according  to  the  sense  in  which  tliey  were  intended,  and  that 
captious  objections  nmst  be  disregarded.  Guided  l)y  this  rule, 
lot  us  ascertain  in  what  sense  the  legislature  used  the  words  any 
other  person,  in  the  statute  under  which  the  defendant  is 
indicted ;  and  in  this  we  will  be  aided  by  observing  another 
rule  of  construction  in  connection  with  it,  which  is,  that  where 
a  clause,  susceptible  of  two  meanings,  is  used  in  a  statute  which 
has  received  a  judicial  construction,  and  the  sauie  clause  is  used 
in  a  subsequent  statute,  upon  the  same  or  an  analogous  subject, 
it  is  to  be  understood  in  the  latter  in  the  same  sense  as  in  the 
former,  unless  the  object  to  which  it  is  applied,  or  the  connec- 
tion in  whi(!h  it  stands,  requires  it  to  be  dilloreutly  understood 
in  the  two  statutes. 

This  statute,  and  those  punishing  larceny,  are  not  only  analo- 
gous in  the  nature  of  the  offenses  made  punishable  and  the 
degree  of  punishment,  but  with  the  word  "^>r/'.w». "  understood, 
iis  it  must  be,  property  of  another,  as  used  in  the  larceny  acts, 
they  are  identical  in  respect  to  the  ])erson8  against  whom  these 
offenses  may  bo  committed ;  and  our  courts  have  always  held 
that  it  is  larceny  to  steal  the  goods  or  moneys  of  a  corporation. 

Again,  the  twelftii  section  of  the  crimes  act  provides  against 
hiiniing,  or  causing  to  be  burned,  the  (Iwelling-hoiise,  store- 
house, warehouse,  etc.,  the  property  of  any  other  person,  etc. 


:?1 


'I      I 


92 


AMERICAN  CRI3IINAL  REPORTS. 


■1     ■:'.!;• 


This  is  the  same  phrase  used  in  the  "  false  pretense  statute ; " 
and  this  court  sustained  an  indictment  against  A,  for  procuring 
H  to  burn  a  warehouse,  the  property  of  an  incorporated  railroad 
company :    Allen,  v.  The  State,  10  Ohio  St.,  287. 

Again,  the  criminal  code  of  Ohio,  section  227,  provides  that 
the  word  "  person  "  includes  a  corporation  as  well  as  a  natural 
person.  This  only  prescribes  the  rule  in  criminal  practice  on 
this  subject ;  but,  under  the  rules  of  construction,  it  may  prop- 
erly be  regarded  as  an  indication  of  legislative  intent  on  this 
point,  in  the  passage  of  criminal  laws  since  the  adoption  of 
the  code. 

Taking  all  these  in  connection  with  the  fact  that  the  statute 
making  it  criminal  to  obtain  goods  by  false  pretenses,  has  been 
passed  since  the  adoption  of  the  code,  and  since  the  larceny  and 
arson  statutes  have  received  the  judicial  constructions  above 
indicated  on  the  point  under  consideration,  and  applying  the 
rules  of  construction  above  stated,  we  hold  that  tiie  word 
"  person,"  as  used  in  the  statute,  includes  artificial  as  well  as 
natural  persons. 

The  second  objection  is,  that  it  is  not  averred  in  the  indictment 
that  the  owner  relied  upon  the  false  pretenses  and  representa- 
tions, and  was  induced  by  means  thereof  to  part  with  his 
property.  "We  have  been  referred  to  quite  a  number  of  authori- 
ties supposed  to  support  this  objection,  which,  on  examination, 
are  foimd  not  to  do  so. 

Two  questions  are  discussed  in  them.  First,  as  to  wliether  the 
offenses  charged  were  within  the  statute,  of  which  no  notice 
need  be  taken  ;  and,  second,  whether  the  indictment  in  the  case 
then  under  consideration  was  good.  And  in  not  a  single  case 
examined  is  it  found  that  an  indictment  otherwise  good  was  held 
bad  for  want  of  the  averment  in  question.  For  example,  we 
take  the  case  of  ihoStatev.  PhilhricJc,  31  Me.,  401,  which  is 
claimed  by  counsel  to  be  directly  in  point. 

Tlie  alleged  false  representations  in  this  case  were  made  by 
Philbrick  to  Goff,  the  prosecuting  witness,  in  reference  to  the 
age  and  value  of  a  mare  he  was  attempting  to  exchange  for  a 
horse  owned  by  Goff. 

Tile  court,  in  deciding  tlie  case,  said  :  "  The  former  part  of 
this  indictment  alleges  that  the  accused,  by  false  pretenses, 
inti'uded  to  cheat  and  defraud  Goff,  and  proposed  to  exchange 
liis  mare  for  the  horse  of  Goff;  but  there  is  no  averment  that 


NORRIS  V.  STATE. 


5)3 


such  an  exchange  was  made,  or  that  the  false  pretenses  were 
made  with  a  view  or  design  to  effect  such  an  excliange." 

It  is  true  tliat  the  court,  in  holding  the  indictment  bad,  did 
remark,  in  substance,  that  it  was  not  averred  that  the  prosecuting 
witness  rolled  upon  the  representations  of  the  defendant ;  but  it 
is  apparent  that  the  indictment,  in  other  respects,  was  so  defec- 
tive that  the  additiomd  allegation  would  not  have  cured  it. 
Similar  remarks  wore  made  by  the  court  in  disposing  of  the  ease 
of  the  Commonwealth  v.  Strain,  10  Met.,  521,  which  is  also 
cited.  This  was  a  case  in  which  it  was  alleged  that  the  defend- 
ant had  made  certain  false  representations  concerning  a  watch  to 
the  prosecuting  witness,  Blake,  whereby  he  obtained  thirty-live 
dollars  from  the  latter.  The  court  said :  "  The  case  at  bar,  if 
confined  in  its  proof  on  the  trial  by  the  jury  to  the  mere  allega- 
tions of  the  indictment,  would  be  certainly  quite  bald.  The 
indictment  does  not  allege  any  bargain,  nor  any  colloquium  as  to 
a  bargain  for  a  watch,  nor  any  proposition  of  Blake  to  buy,  or 
the  defendant  to  sell  a  watch,  nor  any  delivery  of  the  watch,  as 
to  which  the  false  pretenses  were  made,  into  the  possession  of 
Blake  as  a  consideration  for  tlie  money  he  paid  the  defendant." 
The  averment  contended  for  would  not  have  cured  this  indict- 
ment. These  illustrate  the  nature  of  the  questions  in  most  of 
the  cases  referred  to  on  this  point. 

Our  statute  is  substantially  a  transcript  of  the  act  of  30  Geo. 
II.,  c.  24r,  and  the  indictment  in  this  case  follows  the  English 
precedents  under  it,  omitting  none  of  the  material  averments 
under  it.  It  sets  out  with  particularity  the  facts  and  representa- 
tions made  by  the  defendant,  and  alleged  to  be  false  ;  that  they 
were  made  with  the  intent  to  induce  the  owner  to  deliver  the 
goods  to  him  ;  that  his  intent  was  fraudulent,  and  his  purpose 
was  to  cheiit  the  owner,  and  that  Jy  means  of  these  false  pretenses 
he  did  ohtain  the  goods,  etc.  The  truth  of  these  pretenses  is 
deniiul.  It  will  bo  seen  that  the  defendant  was  fully  advised  of 
the  nature  and  extent  of  the  charges  against  him.  Tlie  facts 
stated  in  the  indictment  are  such  that,  if  admitted  to  be  true,  it 
would  be  clear  that  the  owner  did  rely  upon  them  in  parting 
with  his  goods.  This  indictment  is  good,  therefore,  in  this 
respect. 

2.    The  court  erred  in  its  charge  on  the  question  of  venue. 

The  bill  of  exceptions  shows  that  the  defendant  resided  in 
Springfield,  Clark  county,   and  the   sewer-pipe  company  was 


_    ; 


>    It 


94 


AMERICAN  CRIMINAL  REPORTS. 


located  and  doing:  business  at  Akron,  Summit  county,  Ohio. 
The  goods  were  obtained  by  a  letter  containing  the  alleged  false 
ru)>resentations,  accompanied  by  an  order  in  this  language: 
"Vou  may  ship  me  via  frt.  line,"  etc.  The  Cleveland,  Mt. 
Vernon  &  Columbus  railroad  was  doing  a  freight  business 
between  Springfield  and  Akron.  The  day  after  the  letter  and 
orders  were  received  at  Akron  by  the  company,  it  delivered  the 
goods  ordered  as  above,  at  the  freight  depot  at  Akron  of  the 
railroad  above  named,  billed,  consigned  and  to  be  shipped  by  the 
railroad  company  to  the  defendant  at  Springfield,  Ohi(»,  at  his 
risk  and  cost  for  freight.  Upon  this  state  of  facts  the  court 
charged  the  jury  as  follows :  "  If  said  letter  so  written  and 
sent  by  the  defendant  to  the  said  Akron  sewer-pipe  company  Wii 
prepared  and  written  by  him  at  Springfield,  in  Clark  county, 
Ohio,  and  by  him  mailed  at  Springfield  to  said  company  at 
Akron,  Summit  county,  Ohio,  and  was  by  said  company  received 
at  Akron,  in  Summit  county,  Ohio,  where  said  company  had 
their  goods  and  did  business,  and  said  company,  in  pursuance  of 
the  terms  of  said  letter,  shipped  said  goods  at  Akron,  in  Summit 
county,  by  railroad  freight  line,  to  the  defendant  at  Springfield, 
Ohio,  and  that  said  railroad  line  at  Akron  received  said  goods 
from  said  company,  consigned  to  defendant  at  Springfield,  and 
brought  said  goods  on  railroad  to  Springfield  and  there  delivered 
them  to  the  defendant,  and  the  defendant  first  obtained  actual 
possession  at  Springfield  by  the  delivery  of  the  goods  by  the 
railroad  company  to  him  there,  and  if  the  jury  should  also  find 
against  the  defendant  upon  the  mutter  of  said  false  pretenses  as 
alleged  in  the  indictment,  then  the  jury  may  legally  find  that  the 
said  offense  charged  was  committed  in  Clark  county,  Ohio." 
Exceptions  were  raised  to  this  part  of  the  charge,  and  are 
assigned  for  error. 

On  the  facts  as  above  stated,  the  weight  of  authority  is  clearly 
that  the  railroad  company  was  the  agent  of  the  defendant  for 
receiving  the  goods  for  him  at  Akron,  and  carrying  them  to  him 
at  Springfield,  and  the  delivery  of  the  goods  to  it,  by  the  sewer- 
pipe  company,  was,  in  legal  contemplation,  a  delivery  of  the 
goods  to  the  defendant  at  Akron.  The  title  passed  to  the  defend- 
ant, subject  only  to  the  sewer-pipe  company's  right  of  8topj)ago 
in  fmnsitu.  The  defendant  obtained  actual  ])08ses8ion  of  the 
goods  at  Springfield,  from  his  agent,  whoso  possession  was 
own,  and  not  from  the  sewer-pipe  company.     Only  one  deliver} 


IIS 


NORRIS  V.  STATE. 


m 


•could  be  made,  and  tliat  liad  been  provionsly  completed  at 
Akron.  The  legal  fiction  in  larceny  (where  the  owner  does  not 
pai't  with  the  title  to  his  property),  that  there  is  a  new  taking 
and  carrying  away  into  every  county  into  which  the  thief  may 
carry  stolen  goods,  does  not  apply  in  this  case,  where  the  owner 
did  voluntarily  part  with  the  title  to  the  goods  in  question.  The 
offense  was,  therefoi-e,  committed  and  completed  in  Summit 
connty,  and  could  only  liave  been  legally  prosecuted  there. 

There  was  error  in  the  charge  of  the  court  in  this  respect,  for 
which  the  judgment  must  be  reversed. 

3.  As  to  the  valiu'  of  the  goods.  The  court  properly 
instructed  the  jury  to  find  the  market  value  of  the  goods  at 
Akron  when  they  were  placed  on  the  cars,  consigned  to  the 
defendant  at  Springfield.  If  this  court  had  found,  however, 
that  there  was  no  obtaining  of  the  goods  by  the  defendant  till 
they  reached  Springfield,  then  the  title  would  not  have  psissed 
till  such  delivery,  and  the  value  of  the  goods,  at  the  time  and 
place  that  the  delivery  was  made,  is  where  and  when  the  value 
should  have  been  ascertained.  This  court  having  found  that  the 
•offense  was  committed  in  Summit  county,  the  charge  was  correct 
in  reference  to  the  finding  of  the  value  of  the  goods. 

Judgment  reoevsed,  and  caune  remanded  to  Clark  common 
pleas. 

]y[cTr<vAiNK,   C.   J.,   and  Welch,   White    and    Eex,  J.  J., 

concurred. 


,i     *8 


•      f 


Nori:. — lu  Stewart  v.  .hnrnp,  51  Ind.,  413,  it  appeared  that  the  accused 
inadi!  fiilxe  repicsentatious,  as  to  his  responsibility,  to  the  prosecutor  \i\ 
Imliiinii.  On  the  faith  of  these  representations  the  prosecutor  took  a  car- 
loMd  of  liorses  to  New  Yorlt,  with  the  view  of  selling  them  to  the  accused 
when  he  got  there.  In  New  York  he  did  sell  the  horses  to  the  accused,  on 
llie  faith  of  tiie  false  representations  made  in  Indiana.  It  was  heUl  that  tlie 
t  rime,  if  any,  was  committed  in  New  York,  and  could  not  be  prosecuted  in 
Indiana. 

In  Com.  V.  Taylor,  104  Mass,,  the  evidence  was  that  the  accused  made  false 
representations  to  a  dealer  in  mowing  machines  in  Worcester,  Ma.ss, ,  and 
thereby  induced  the  dealer  to  ship  two  machines  to  certain  persons  in  Ver- 
mont, whose  names  he  gave.  There  were  in  fact  no  such  persons  in  Vermont, 
and  the  prisoner  himself  went  there  and  got  the  machines.  It  was  hdd,  on 
these  facts,  that  he  obtained  the  machines  in  Worcester  county,  and  that  the 
case  was  properly  triable  there. 

In  People  v.  Mams,  3  Den.  (N.  Y.),  100,  1  N.  Y.  (1  Comst.),  173,  010,  it 
appeared  that  defendant,  being  in  Ohio,  by  means  of  false  receipts  which  he 
caused  to  be  presented  to  the  prosecutors  in  New  York  by  innocent  ajjents, 


I 


'  ■  111 : 


'i  I 


96 


AMERICAN  CRIMINAL  REPORTS. 


obtained  money  which  the  prosecutors  paid  to  the  defendant's  innocent  instru- 
ments in  New  Yorli.  It  was  held  tliat  the  defendant  was  properly  indicted 
and  tried  in  New  York,  altliough  he  himself  had  never  been  in  New  York. 

For  other  decisions  to  the  eflfect  that  the  offense  is  triable  where  the  prop, 
erty  or  money  is  obtained,  without  regard  to  the  place  where  the  false  pre- 
tenses are  made,  see  People  v.  Sully,  5  Park.  Cr.  (N.  Y.),  143;  Skiff  v.  PeopU, 
2  Park.  Cr.  (N.  Y.),  139. 


Kellogg  v.  State. 

(26  Ohio  St.,  15.) 

Larcent:    Fal^  pretenses  ;  distinction  between  them —  Confidence  game. 

"When  a  contract  for  the  loaa  of  money  is  induced  by  fraud  and  false  pretenses 
of  the  borrower,  and  the  lender,  in  performance  of  the  contract,  delivers 
certain  bank-bills,  without  any  expectation  that  the  same  bills  will  be 
returned  iu  payment,  the  borrower  is  guilty  of  obtaining  money  by  false 
pretenses,  but  is  not  guilty  of  the  crime  of  larceny. 

Error  to  the  court  of  common  pleas  of  Hamilton  county. 

At  the  June  term,  1875,  of  the  court  below,  the  plaintiff  in 
error  was  convicted  of  the  crime  of  larceny,  and  sentenced  to  the 
penitentiary  for  a  terra  of  years. 

The  testimony  offered  on  the  trial  showed  that,  in  the  month 
of  April  preceding,  the  prisoner  had  obtained  $280  in  bank-bills, 
from  the  prosecuting  witness,  under  the  following  circumstances: 

The  witness  and  the  prisoner  had  first  met  and  formed  a  casual 
acquaintance  as  passengers  on  a  train  of  cars  passing  from  St. 
Louis  to  Cincinnati.  After  their  arrival  at  Cincinnati  they  again 
met  at  the  railroad  depot,  where  the  prosecuting  witness  was 
about  to  take  another  train  for  his  home  in  Madison  county, 
when  the  following  occurrences  took  place,  as  detailed  by  the 
witness :  The  defendant  asked  me  if  I  was  going  to  take  that 
train  ;  I  said  yes.  He  said  he  thought  he  would  go  on  that  'rain 
too.  Then  a  man  came  up  to  us  and  said  to  the  defendant,  "if 
you  want  to  go  on  that  train,  you  had  better  get  your  baggage 
and  pay  your  freight  bill."  The  defendant  then  said,  "  Confound 
these  fellows,  they  won't  pay  mo  any  preniium  on  my  gold,  and 
I  have  no  other  money  to  pay  this  freight  bill,  and  I  don't  want 
to  give  them  two  hundred  and  eighty  dollars  in  gold  and  get  no 
premium."  He  then  said  to  me,  "  Will  you  let  me  have  $280  in 
currency,  and  I  will  give  you  this  gold  to  hold  as  security  until 
I  can  go  to  the  bank  and  draw  some  money  which  1  have  there, 


KELLOGG  V.  STATE. 


n 


and  I  will  then  pay  you  $280  back."  He  further  said,  "  I  must 
get  my  freiglit  out  to-niglit,  and  they  won't  let  me  have  it  until 
I  pay  the  bill,  which  is  $280."  I  then  told  him  I  would  let  him 
have  the  two  hundred  and  eighty  dollars  to  pay  his  freight  bill ; 
which  I  did,  and  he  gave  me  fourteen  pieces  of  what  he  said  was 
gold,  and  which  I  took  for  twenty-dollar  gold  pieces,  and  I  gave 
him  $280  in  paper  money.  He  started  off,  and  I  examined  them 
and  found  that  they  were  not  twenty-dollar  gold  pieces,  nor  were 
they  gold  at  all.  *  *  I  followed  him,  but  did  not  overtake 
him  or  see  him  any  more  until  he  was  arrested. 

On  cross-examination,  the  prosecuting  witness  testified  as  fol- 
lows :  "  I  delivered  my  money  to  him  voluntarily.  He  used  no 
force  or  violence  to  obtain  it  from  me.  I  never  exjiected  to  get 
the  same  money  again.  He  said  he  would  go  to  the  bank  aud 
draw  some  money,  and  come  back  and  pay  me  what  he  borrowed 
and  get  the  gold." 

The  commission  of  the  crime  charged  in  the  indictment  waa 
not  otherwise  proved  than  as  above  stated. 

The  court  was  requested  by  the  defendant  to  charge  that,  "  if 
the  jury  found,  from  the  evidence  in  the  case,  that  the  defendant 
fraudulently  and  wrongfully  induced  Denton,  the  prosecuting 
witness,  to  part  with  the  money  mentioned  in  the  indictment ; 
and  if  they  also  found  that  the  prosecuting  witness  was  fraud- 
ulently hiduced  to,  and  in  fact  did  part  with  the  possession  and 
property  in  the  money  described  in  the  indictment,"  the  defend- 
ant could  not  be  convicted  of  the  offense  of  larceny  as  cliarged 
in  the  indictment.  The  record  shows  that  "  the  instruction  in 
that  form  the  court  refused  to  give,"  but  did  give  the  same  with 
tiie  following  explanation :  "  That  the  word  property,  as  used, 
does  not  mean  the  mere  money — it  means  the  proprietory  I'ight 
of  ownership  in  the  money.  So  that,  while  the  manual  posses- 
sion of  the  money  may  be  in  one  pei'son,  the  legal  technical  prop- 
erty may  still  be  in  another,  and  a  bailment  or  possession  of 
goods  and  chattels  obtained  by  a  trick  or  fraud  does  not  transfer 
the  property  to  the  jierson  practicing  the  trick  or  fraud.  If  you 
find,  therefore,  that  the  mere  possession  of  the  money  with  the 
owner's  consent  was  fraudulently  obtained  by  the  defendant  with 
intent  to  steal  it  from  the  owner,  it  is  larceny." 

C.  H.  Blavlburtif  for  plaintiff  in  error : 

The  testimony  shows  that  Kellogg  obtained  the  money  from 
Denton  without  force  or  violence;  that  Denton  delivered  the 
Vol.  n.-7 


;■■  t 

■-:'     3 

i 


It 


h  ,.t 


f,i 


!! 


08 


AMERICAN  CRIMINAL  REPORTS. 


money  to  liiin  voluntarily,  and  did  not  expect  to  get  the  sanio 
money  again.  This  being  so,  there  was  no  trespass,  and  could 
be  no  haceny  :  2  Bish.  Cr.  L.,  sections  812,  813,  818,  and  author- 
ities cited ;  2  Wharton  Cr.  L.,  sections  1853, 1854  ;  Ennis  v.  The 
State,  3  Iowa,  67 ;  Welch  v.  People,  17  III,  399  ;  WiUon  v.  The 
State,  1  Porter,  118 ;  15  Serg.  and  R.,  93.  Nor  does  it  change 
the  rule  when  tbe  consent  is  obtained  by  fraud  :  2  Bish.,  Cr.  L, 
section  811 ;  Hex  v.  Summers,  3  Salk.,  194;  2  E.  P.  C,  668 ;  15 
Serg.  and  R,  93;  Cary  v.  Ilotailing,  1  Hill  (K  Y.),  311. 

McIlvaine,  C.  J.  On  the  trial  below,  the  jury  was  properly 
instructed  that  the  defendant  could  not  be  convicted  of  larceny, 
if  he  obtained  the  possession  of  the  money  alleged  to  have  been 
stolen  from  the  prosecuting  witness  with  his  consent,  if  it  was 
further  found  that,  at  the  time  of  the  transfer  of  the  possession, 
the  right  of  proj^erty  in  the  money  also  passed  from  the  prose- 
cuting witness  to  the  defendant,  althongh  the  witness  was 
induced,  through  the  fraud  of  defendant,  to  part  with  the  posses- 
sion and  the  property  in  the  money.  And  there  was  no  error  in 
the  further  instruction :  "  If  you  find,  therefore,  that  the  m.ere 
j^to^neKslon  of  the  money,  with  the  owner's  consent,  was  fraud- 
ulently obtained  by  the  defendant,  with  intent  to  steal  it  from 
the  owner,  it  is  larceny." 

This  last  instruction,  however,  was  the  predicate  of  a  proposi- 
tion which  had  been  given  in  explanation  of  the  first  instruction, 
to  wit :  "While  the  manual  possession  of  money  nuiy  be  in  one 
person,  the  legal  technical  property  may  still  be  in  another ;  and 
a  bailment,  or  possession  of  goods  and  chattels,  obtained  by  a 
trick  or  fraud,  does  not  transfer  the  property  to  the  person  prac- 
ticing the  trick  or  fraud."  Whether  this,  as  an  abstract  proposi- 
tion of  law,  be  true  or  false,  it  was  certainly  misleading  in  the 
case  as  it  was  made  in  the  evidence.  The  jury  could  not  well 
have  understood  it  otherwise  than  as  a  declaration  by  the  court 
that  the  t;»  nsaction,  as  detailed  by  the  prosecuting  witness, 
amounted  to  a  mere  contract  of  bailment,  which  left  the  right  of 
pi'operty  remaining  in  the  prosecuting  witness. 

Now,  if  the  common  law  at  all  recognizes  a  class  of  bailments, 
corresponding  to  the  rmttuum  of  the  civil  law — to  wit,  where  a 
loan  is  made  of  money,  wine,  or  other  thing  that  may  be  valued 
by  nund)er,  weight  or  measure,  which  is  to  be  restored  only  in 
kind  of  equal  value  or  quantity— it  is  not  true  that  the  right  of 


KELLOGG  V.  STATE. 


n 


property  in  such  bailments  remains  in  the  bailor;  but  on  the 
other  hand,  the  absolute  property  passes  with  the  possession,  and 
rests  with  the  borrower.  In  such  cases  the  fraud  of  the  borrower 
no  more  prevents  the  passing  of  the  title  to  the  thr'ng  loaned 
upon  delivery,  than  docs  fraud  on  the  part  of  a  purchaser  of 
goods.  The  contract  in  either  case  is  not  void,  but  only  voidable 
at  the  election  of  the  lender  or  seller.  The  better  opinion,  how- 
ever, seems  to  be  that  such  a  loan  is  not  a  regular  bailment  at 
common  law,  but  falls  more  properly  under  the  innominate  con- 
tract, do  vt/acies,  and  results  in  a  debt,  and  not  in  a  trust. 

The  testimony  before  the  jury  in  the  court  below  tended  to 
prove  a  loan  of  money  from  the  prosecuting  witness  to  the 
defendant,  whereby  the  borrower  became  indebted  to  the  lender, 
and  assumed  to  make  payment  in  other  money.  The  testimony 
of  the  witness  was,  that  he  voluntarily  delivered  the  money  to 
tLe  defendant,  and  never  expected  to  get  the  same  money  again. 
It  is  true  he  was  induced  to  make  the  loan  through  the  fraud 
and  false  pretenses  of  the  defendant.  No  doubt  a  crime  was 
thus  committed  by  the  defendant,  but  it  was  the  crime  of  obtain- 
ing money  under  false  pretenses,  and  not  a  larceny.  To  consti- 
tute larceny  in  a  case  where  the  owner  voluntarily  parts  with  the 
possession  of  his  property,  two  other  conditions  are  essential: 
1,  the  owner,  at  the  time  of  parting  with  the  possession,  must 
expect  and  intend  that  the  thing  delivered  will  be  returned  to 
him  or  disposed  of  under  his  direction  for  his  benefit ;  2,  that  the 
person  taking  the  possession  must,  at  the  time,  intend  to  deprive 
the  owner  of  his  property  in  the  thing  delivered.  But  where 
tlie  owner  intends  to  transfer,  not  the  possession  only,  but  also 
tlie  title  to  the  property,  although  induced  thereto  by  the  fraud 
and  fraudulent  pretenses  of  the  taker,  the  taking  and  carrying 
away  do  not  constitute  a  larceny. 

In  such  case  the  title  rests  in  the  fraudulent  taker,  and  he  can- 
not be  convicted  of  the  crime  of  larceny,  for  the  simple  reason 
that,  at  the  time  of  the  transaction,  he  did  not  take  and  carry 
away  the  goods  of  another  person,  but  the  goods  of  himself. 

Had  the  law  been  thus  stated  to  the  jury,  there  is  no  doubt  the 
verdict  would  have  been  not  guilty,  as  he  stood  charged  in  the 
indictment. 

Judgment  reversed,  and  cause  reiiiniided  for  such  further  pro- 
ceeding as  may  be  lawfully  had  in  tlic  ])remises. 

Wkloh,  Wiiitk,  Rex  and  Gilmokk,  JJ.,  concurred. 


:i 


;l 


100  AHERIOAN  CRIMINAL  REPORTS. 


State  v.  Andebsow. 

(47  Iowa,  142.) 

Falsb  pbetenbeb:    CritM  not  committed  where  title  does  Jiot  pan. 

Where,  by  the  agreement  between  the  prosecutor  and  the  defendant,  th» 
defendant  gets  no  title  to  the  property  which  is  delivered  to  him  on  the 
faith  of  the  alleged  false  pretenses,  the  crime  of  obtaining  property  by 
false  pretenses  is  not  committed. 

Servers,  J.  The  indictment  charged  "that  *  *  defend- 
ant did  obtain  from  the  St.  Paul  liarvester  works,  tlirongh 
J.  0.  Yetzer,  *  *  *  one  Elward  harvester,  of  tlie  vahie 
of  one  hundred  and  ninety  dollars."  The  defendant  pleaded  not 
guilty.  The  false  pretenses  used  for  the  purpose  of  obtaining 
Baid  property  were  in  writing,  and  were  as  follows : 

"1115.00.  Atlantic,  Iowa,  July  12,  1875. 

"For  value  received,  on  or  before  the  iirst  day  of  October^ 
1876, 1,  the  subscriber,  of  Benton  township,  county  of  Cass,  and 
state  of  Iowa,  promise  to  pay  to  the  order  of  the  St.  Paul  har- 
vester woi'ks,  one  hundred  and  fifteen  dollars,  at  the  Cass  County 
Bank,  in  Atlantic,  with  interest  at  ten  per  cent  per  annum,  from 
date  until  paid,  and,  in  addition,  I  will  pay  five  per  cent  attor- 
ney's fees,  if  suit  is  commenced  on  this  note. 

"  The  express  condition  of  the  sale  and  purchase  of  the  Elward 
harvester,  for  which  this  note  is  given,  is  such  that  the  title, 
ownership,  or  possession,  does  not  pass  from  said  St.  Paul  har- 
vester works  until  this  note  is  paid  in  full ;  that  said  St.  Paul 
harvester  works  shall  have  full  power  to  declare  this  note  due, 
and  take  possession  of  said  machine  at  any  time  they  may  deem 
themselves  insecure,  even  before  tlie  maturity  of  tliis  note.  For 
the  purpose  of  obtaining  credit,  I,  P.  II.  Anderson,  hereby  cer- 
tify that  I  own,  in  my  own  name,  forty  acres  of  land  in  section 
thirty-one,  township  of  Benton,  county  of  Cass,  and  state  of 
Iowa,  with  twenty-iive  acres  improved,  worth  $1,000,  which  is 

not  incumbered  by  mortgage  or  otherwise,  except .    I 

own  $800  dollars  worth  of  personal  property  over  and  above  all 
indebtedness. 

"P.  H.  ANDERSON. 

"P.  O.  Atlantic,  county  of  Cass,  state  of  Iowa." 


STATE  V.  ANDERSON. 


101 


Tlie  "state  introduced  evidence  which  tended  to  show  the 
representations  made  and  their  falsity,  and  also  that  defendant 
purchased  of  the  St.  Paul  harvester  works  a  harvester,  which  the 
agent  of  the  company  was  .induced  to  sell  and  deliver  hy  and 
through  said  representations." 

After  the  state  rested,  the  defendant  moved  the  court  to 
"  direct  the  jury  to  acquit  the  defendant,  for  the  reason  that  it 
appeared  by  the  contract  the  defendant  did  not  obtain,  by  the 
alleged  false  representations,  the  title  to  or  property  in  said  har- 
vester, but  the  same  remained  in  the  St.  Paul  harvester  works 
company,  and  that  said  company,  notwithstanding  the  delivery  of 
the  harvester  to  defendant,  continued  to  be  the  owner  of  the 
same,  with  the  right  to  resume  possession  thereof  at  any  time," 
which  motion  was  sustained,  and  the  jury  so  directed.  The  cor- 
rectness of  this  ruling  is  the  only  question  to  be  determined. 

The  statute  provides:  "If  any  person  designedly  and  by 
false  pretense,  or  by  any  privy  or  false  token,  and  with  intent 
to  defraud,  obtain  from  another  any  money,  goods,  or  other 
property    *    *:"    Code,  §  4073. 

In  3  Archbold's  Criminal  Practice  and  Pleading,  467,  it  is 
said :  "  In  order  to  convict  a  man  of  obtaining  money  or  goods 
by  false  pretenses,  it  must  be  proved  that  they  were  obtained 
under  such  circumstances  that  the  prosecutor  meant  to  part  with 
his  right  to  the  property  in  the  thing  obtained,  and  not  merely 
with  the  possession  of  it."  This  doctrino  is  recognized  in  3 
Greenleaf,  §  160,  and  also,  as  we  understand,  in  2  Wharton  on 
Criminal  Law,  §  2149. 

The  only  cases  cited  by  the  attorney-general  as  being  in  con- 
flict with  these  authorities,  are  Skiff  v.  The  People,  2  Parker's 
Criminal  Eeports,  131),  and  People  v.  IJai/nes,  11  Wend.,  558. 
The  former  has  but  little,  if  .any,  bearing  on  the  question  before 
us,  and  the  latter  was  reversed  in  The  People  v.  Jlaynes,  14 
Wend.,  547,  and  it  was  then  held,  where  a  person  sold  goods  to 
another  on  credit  and  delivered  the  same  on  a  steamboat  desig- 
nated by  the  purchaser,  to  be  forwarded  to  bis  residence,  that  the 
Side  became  complete,  and  the  title  and  possession  vested  in  the 
purchaser.  After  such  delivery  the  seller  made  the  attempt  to 
stop  the  goods  while  in  transit,  to  prevent  which  tlie  pni-chasor 
made  certain  false  representations,  in  consoijuence  of  which  the 
seller  did  not  persist  in  his  attempt  to  seize  the  goods.  Tlie  pur- 
chaser was  indicted  for  obtaining  the  goods  by  means  of  false 


^ 


t 


I  i\ 


1  k 
'  1 


Hm    ' 


102 


AMERICAN  CRIMINAL  REPORTS. 


■■\\ 

pretenses,  and  it  was  held  he  could  not  be  convicted.  It  is  evi- 
dent, in  the  case  at  bar,  that  the  seller  did  not  intend  to  part 
•with  either  the  right  of  property  or  possession,  for  it  is  expressly 
provided  in  the  contract  of  purchase  and  sale  "  that  the  title, 
ownership  or  possession  does  not  pass"  until  the  note  is  paid, 
and  the  right  "  to  declare  the  note  due  and  take  possession  of 
the  machine  at  any  time,"  was  expressly  reserved. 

Tlie  defendant  did  not  even  obtain  an  unqualified  right  to  the 
possession.  The  plaintiff,  in  a  legal  sense,  parted  with  nothing. 
It  is  unnecessary  to  go  as  far  as  the  rule  laid  down  in  Archbold, 
in  order  to  sustain  the  ruling  below.  At  least,  we  think  the 
defendant  must  have  obtained,  by  means  of  the  false  pretenses, 
either  the  title  or  the  unqualified  right  of  possession  as  between 
himself  and  his  vendor,  for  at  least  some  length  of  time.  Here 
the  delivery  and  resumption  of  the  possession  by  the  vendor 
could  be  at  the  same  instant  of  time,  or  as  near  thereto  as  it  wa& 
possible  for  the  mind  to  act  and  determine. 

Affirmed. 


Note. — The  distinction  between  the  crimes  of  obtnining  property  by  falsi- 
pretenses  and  of  larceny,  by  a  trick,  is  this:  The  crime  of  larceny  is  com- 
mitted where  the  prisoner,  by  means  of  fraud,  falsehood,  a  trick,  or  any 
fraudulent  device,  obtains  possesmn  of  the  property  of  another,  wiln  the 
intent,  at  the  time  Jm  gets  it  into  his  possession,  of  stealing  it,  the  owner  not 
intending  to  part  with  the  title  to  the  property.  False  pretenses  is  comnutted 
where,  by  means  of  false  pretenses  or  representations,  the  owner  is  induced  to 
part  with  the  title  to  bis  property.  See  Cline  v.  State.  43  Tex.,  404;  Vickei-y  v. 
Btate,  10  Tex.,  320. 


Pkople  V.  Jacobs. 

(85  Mich.,  80.) 

Falbb  pretenses :    Information—  Matter  of  opinion  not  a  false  pretense  — 

Erroneous  charge. 

In  an  information  for  false  pretenses  it  is  not  necessiiry  to  allege  in  express 
words  that  the  party  defrauded  relied  upon  the  false  rcpreseutiitions 
made,  but  this  is  a  necessary  implication  I'luiii  (he  allcuallon  tliat  he  was 
induced  by  the  false  representations  to  purl,  with  his  money. 

If  any  of  the  false  representations  charged  in  the  infornmlion  are  matters  of 
opinion,  and  immaterial,  a  charge  Miat  if  the  jiroseculor  parted  with  his 
money  relying  upon  any  of  the  false  roproseutatloDS  ttlleyed,  the  oirense 


rEOI'J.K    •.  JACOIJS. 


103 


iseomplete,  without  disorlminating  between  those  that  are  material  and 
those  that  nre  immaterial,  is  (irronoous. 
Statements  as  to  the  value  of  lots,  or  that  they  are  "nicely  located,"  are  mat- 
ters of  opinion,  and  not  facts,  and  therefore  not  within  the  statute. 

Gkaves,  J. :  Jjicohs  was  convicted  on  a  charge  of  having 
obtained  money  of  one  Barts  by  false  pretenses,  and  the  case 
conies  hero  on  exceptions  before  judgment. 

Many  exceptions  seem  to  have  been  taken,  but  much  the  larger 
portion  are  properly  sih;!iiUoned.  There  are  some  others  it  would 
be  desirable  to  consider  if  the  record  was  in  better  shape.  Jacol»s 
culled  on  l>arts  to  borrow  live  hundred  dollars,  and  proposed  to 
secure  him  by  mortgage  on  land  owned  by  his  wife,  Mrs.  Jacobs. 
After  some  talk,  the  loan  was  made,  but  Barts  retained  ten  dol- 
lars, by  understanding,  to  pay  his  expenses  in  going  subsequently 
to  view  the  land.  Mrs.  Jacobs  gave  her  mortgage,  together  with 
her  note,  to  Barts  for  the  money.  Ir  this  negotiation,  as  charged 
in  the  information,  Jacol)s  made  the  false  representations  con- 
corning  the  land  mortgaged.  It  alleges  that  he  falsely  and  felon- 
iously pretended  to  Barts  that  Mrs.  Jacobs  was  owner  of  lots 
thirty-six,  thirty-eight,  forty  and  forty-two,  in  block  three,  in 
Harriet  M.  Clement's  subdivision  of  the  south  one-third  of 
fifteen  acres  lying  in  a  square  form  in  the  northwest  corner  of 
the  northeast  quarter  of  section  twelve,  in  town  six  south,  of 
range  twelve  west,  according  to  the  recorded  ])lat ;  that  the  lots 
were  situated  within  the  city  limits  of  the  city  of  Grand  Rapids; 
wore  on  the  street  running  directly  from  the  business  part  of  the 
city  to  the  fair  grounds,  near  the  city  limits  ;  were  between  such 
fair  grounds  and  the  business  portion  of  the  city ;  that  the  lots 
were  nicely  located  ;  were  (piarter-acre  lots  and  constituting  one 
square  aero;  that  they  would  sell  at  anytime  at  from  twelve 
hundred  dollars  to  fifteen  hundred  dollars  cash;  were  worth 
much  more  than  that,  and  were  entirely  free  from  all  incum- 
brance. These  pretenses  arc  afterwards  alleged  to  have  been 
severally  false.  On  the  opening  of  the  trial  it  was  objected  that 
the  information  set  up  no  offense.  The  ground  of  the  objection 
was  not  explained.  But  at  a  later  stage  of  the  trial,  the  reason 
for  the  objection  was  stated  to  be,  that  the  information  did  not 
Btate  in  words  that  Barts  relii'd  on  the  representations.  The 
objection  is  not  much  insisted  on,  and  is  not  tenable. 

The  allegations  in  'his  particular  are  formally  sufficient.     It 
was  not  essential   to  charge   in   express  terms  that  Barts  gave 


^  H'- 


';'■  1 


104 


AMERICAN  CRIMINAL  REPORTS. 


^A--l 

credit  to  the  false  pretenses.  That  he  did  so  was  u  necessary 
implication  from  the  allegation  that  he  was  induced  by  the  repre- 
sentationi-i  to  part  with  his  money:  State  v.  Penley,  27 
Conn.,  587. 

The  court  charged  that  if  the  jury  believed,  from  the  evidence, 
that  any  of  the  i)retenses  charged  were  proved  to  be  false  and 
fraudulent,  and  were  part  of  the  moving  cause  which  induced 
Barts  to  part  with  his  money,  and  that  he  would  not  have  parted 
with  it  had  not  such  false  pretenses  been  made,  they  would  be 
justified  in  finding  him  guilty. 

The  instruction  must  have  been  understood  as  assuming  that 
each  distinct  pretense  set  up  was  a  valid  ground  of  charge,  and 
on  which  a  conviction  might  rest  if  found  false  and  fi-audulent 
and  operative  in  any  degree  on  Barts  to  cause  him  to  make 
the  loan. 

No  instruction  was  given  that  any  representation  laid  as  a  false 
pretense  could  not  legally  be  so  laid,  nor  any  instruction  that 
any  representation  laid  as  a  pretense  was  unproved,  or  any 
instruction  to  preclude  the  jury  from  resorting  to  the  whole 
evidence  and  finding  from  it  that  all  the  representations  laid  as 
pretenses  were  in  fact  made.  Hence,  if  any  representation  laid 
as  a  false  pretense  could  not  be  lawfully  impressed  with  that 
character,  the  jury  were,  in  effect,  permitted  to  convict  npon  it. 

Now,  tlie  alleged  pretense  that  the  lots  were  "nicely  located,'' 
was  a  distinct  pretense  in  the  information.  But  it  was  not  such 
a  representation  as  could  be  made  the  subject  of  criminal  i)rose- 
cution  as  a  false  pretense.  It  could  not  convey  or  be  understood 
as  conveying  any  definite  idea  at  all.  There  is  no  standard  for 
trying  the  accuracy  of  such  a  statement.  What  is  a  nice  loca- 
tion to  one  may  be  far  otherwise  to  another,  and  even  to  the 
mind  of  one  using  it  the  expression  is  vague  and  ind(!terminate. 
No  one  can  be  supposed  to  accept  such  a  rei)re8entati(>n  as  an 
assertion  of  the  existence  of  some  fact  or  circumstance  snIHcient 
to  cause  him  to  change  his  situation  in  reliance  on  it,  and  the 
law  cannot  measure  or  weigh  people's  fancies. 

The  alleged  re|)resentation  concerning  the  value  of  the  lots  to 
be  mortgaged  cannot  be  construed  as  anything  beyond  ii  matter 
of  opinion,  and  it  is  not  to  be  supposed  the  expnission  was 
understood  in  a  sense  more  absolute.  There  is  no  reason  for 
implying  that  Barts  relied  u])on  it,  or  was  in  any  way  or  to  any 
extent  duped  by  it :     JJidoj)  v.  SitKt//,  (!;5  AEe.,  12 ;  Jfooney  v. 


Mill 


er. 


COMMONWEALTH  v.  GRADY. 


105 


Miller,  102  Maf?8.,  217;  Long  v.  Woodman,  58  Mc,  49,  and 
cases  cited.  These  allegations  were  accordingly  not  sufficient  as 
grounds  of  charge,  and  it  was  error  to  allow  the  jury  to  regard 
tliein  as  though  they  were.  There  are  several  topics  which 
would  require  discussion  and  explanation  before  a  jury,  but  are 
liardly  proper  for  consideration  here. 

The  conviction  must  be  set  aside,  and  in  case  another  trial  is 
deemed  expedient,  no  doubt  the  prosecution  will  see  to  it  that 
♦he  proceeding  is  quite  differently  shaped. 

The  other  justices  concurred. 


Commonwealth  v.  Gkadt. 

(13  Bush  (Ky.),  285.) 

False  pretenses  :    Crinw   not  committed   where   (h«  defrauded  party   hat 
means  of  detecting  the  fraud  at  hand. 

A  false  statement  that  a  house  and  lot  were  unincumbered,  when,  in  fact, 
they  were  subject  to  a  recorded  mortgage,  Is  not  a  false  pretense  within 
the  statute,  because  the  party  defrauded  had  the  means  of  detecting  it  at* 
hand,  and  might  have  protected  himself  by  the  exercise  of  common 
prudence. 

Judge  Elmott  delivered  the  opinion  of  the  court. 

This  is  an  indictment  charging  the  appellee  with  having 
obtained  the  money  and  property  of  Presley  O'Bannon  by  the 
false  pretenses  of  fraudulently  representing  to  O'Rannon  that  ho 
was  the  owner  of  a  house  and  lot  in  Owen's  addition  to  the  town 
of  Eminence,  and  that  the  house  and  lot  so  owned  were  free 
from  lien  or  mortgage  to  any  one. 

By  those  misroprosentations  it  is  charged  thatappolloe  obtained 
from  O'Biinnon  5^125  in  money  and  some  promissory  notes  for 
the  house  and  lot ;  and  that  it  turned  out,  on  investigation,  there 
was  a  recorded  mortgago  on  the  property,  which  had  been  exe- 
cuted by  !i])p('lloo  to  Lotty  Kelso. 

The  indictnwnt  fails  to  state  the  amount  of  the  mortgage  Hon 
of  Mrs.  Kelso,  for  if  it  was  merely  nominal  the  appellee  niiiy 
have  math'  the  roprosontiitions  chargod  with  no  intention  of 
defrauding  O'llannon.  but  with  the  intention  of  removing  the 
incumbrance  with  a  part  of  the  money  received  from  him.  But 
wc  a<,'roo  with  the  opinion  of  the  lower  court,  that  the  indictment 
was  iiisnflicient  for  several  reasons. 


;| 


v. 


'1r^ 


'^:tr 


106 


AMERICAN  CRIMINAL  REPORTS. 


In  the  case  of  the  Commonwealth  v.  Havghey  (3  Met., 
it  was  charged  tliat  llaughey  obtained  credit  on  a  note  he  owed 
R.  E.  Jones,  upon  tlie  false  and  fraudulent  pretense  and  repre- 
sentation that  a  large  quantity  of  tobacco  which  Jones  then  pur- 
chased would  average  in  quality  with  a  sample  which  llaughey 
then  and  there  exhibited  to  said  Jones. 

This  court  affirmed  the  judgment  of  the  lower  court  dismiss- 
ing the  indictment,  and  say  that  a  common  caution  on  the  part 
of  Jones  would  have  protected  him  from  any  injury ;  he  could, 
without  trouble,  have  retained  his  note  till  the  tobacco  was 
delivered ;  and  if,  upon  an  offer  to  deliver  it  to  llaughey,  it  was 
not  equal  in  quality  to  the  sample  exhibited,  he  could  have 
rejected  it. 

So  in  this  case,  O'Bannon  could  have  refused  to  execute  and 
deliver  his  note  to  appellee,  or  even  to  pay  him  the  $125  in 
inoney,  till  he  stepped  to  the  clerk's  office  and  ascertained  from 
the  records  of  the  Henry  county  v.ourt  whether  the  title  to  the 
house  and  lot  was  such  as  represented. 

In  Wharton's  Criminal  Law,  vol.  2,  section  2129,  the  doctrine 
is  laid  down  that  "  a  representation,  though  false,  is  not  within 
the  statute  (meaning  the  statute  against  obtaim'ng  money  and 
property  by  false  pretenses),  unless  calculated  to  deceive  persons 
of  ordinary  prudence  and  discretion;"  and  this  author  further 
says  that  the  statutes  against  obtaining  money,  etc.,  by  false  pre- 
tenses, ought  not  to  be  so  interj)reted  as  to  include  a  case  where 
the  party  defrauded  had  the  means  of  detection  at  hand. 

Here  O'Bannon  had  the  m>  ns  of  detection  at  lianci ;  for,  by  a 
visit  to  the  clerk's  office,  he  could  soon  have  ascertained  whether 
the  appellee  had  the  unincumbered  title  to  the  house  and  lot  as 
represci.ted  by  him. 

Wherefore  the  judgment  if  affirmed. 

Note.— And  so,  in  Slate  v.  Youiiff,  70  N.  C,  258,  inducing  a  person  to  buy 
cotton  on  Ihc  fulso  prctease  that  it  was  of  llic  ;^rmle  "uond  middling,"  wiw 
Md  not  within  the  sliitute,  because  the  purchaser  might  have  examined  the 
cotton  himself. 

In  Com.  V.  Norton,  11  Allen  (Mass.),  200,  it  was  hid,  that  to  ol)tiiin  money 
of  anothor  by  falsely  representing  to  lilm  that  on  a  previous  oecas'on  ho  hud 
omitted  to  relurn  the  proper  change  to  the  person  making  the  rei)rescntuliou, 
and  thereby  inducing  him  to  correct  the  suppo'<ed  mistake,  is  not  within  the 
statute. 

For  other  cases  in  which  It  was  held  that  the  false  pretenses  were  so  trans- 
parent, and  so  liltle  calculated  to  deceive  a  i)erson  of  ordinary  i)rudenee  at 
not  to  l)e  will. ill  the  stiiiuie,  -ee  4  Illll,  U;  40  Me.,  luO;  7  Eng.  (Ark.),  05. 


EUBBZZLEHl 


STATE  V.  KENT. 


The  rule  on  this  question  is  laid  down  in  Re  Greenough,  31  Vt.,  279,  in  this 
manner:  "It  may  in  trutli  be  said,  that  every  false  representation  is  not  a 
false  pretense,  but  if  it  requires  something  to  be  done,  by  the  application  of 
tests  or  otlierwise,  to  ascertain  wliether  tlie  representation  is  false,  it  then 
becomes  a  false  pretense.  In  this  case  it  was  mutter  of  experiment  whether 
the  ingredients  specified  in  the  recipe  would  |)roduce  as  a  compound  a  non- 
explosive  burning  fluid.  Tlie  falsity  of  the  representation  by  Greenough 
was  not  to  be  discovered  by  ocular  inspection  of  the  ingredients,  but  by  the 
tests  of  chemical  analysis,  or  actual  experiment.  The  representation  to  con- 
stitute a  false  pretense  must  be  of  an  existing  fact,  it  is  true,  yet  it  is  no  objec- 
tion that  it  has  relation  to  a  future  event.  *  *  «  We  appreliend  the  repre- 
sentation made  by  Greenough  did  constitute  a  false  jyrctense  within  the  statute, 
in  analogy  to  repeated  decisions." 

On  the  other  hand  it  was  Iield,  in  State  v.  Dorr,  33  Me.,  498,  that  a  false 
representation  that  property  was  unincuniucred  was  within  tlie  statute.  And 
so  a  representation  that  a  mortgage  offered  for  sale  is  a  first  lien  on  the 
property,  is  an  indictable  false  pretense:  People  v.  Sully,  5  Park.  Cr.  (N.  Y  ), 
143.  The  court  say:  "All  men  are  not  equally  prudent  or  cautious,  and  the 
statute  was  passed  for  the  protection  of  the  weaker  and  more  credulous  and 
unsuspecting  part  of  mankind."  To  a  similar  effect  are  cases  to  be  found  in 
10  Harris  (Pa.),  256;  9  Ad.  and  E.  (N.  S.),  270;  li  Wend.,  537;  14  111.,  348. 


State  v.  Kent. 
(22  Minn.,  41.) 


zzlehent:    Agent  entitled  to  deduct  his  commission  out  of  receipts-' 

Joint  owner. 


A  collector  of  pew  rents  for  a  church,  who  is  entitled  to  "  five  per  cent  of  all 
the  pew  rents,  no  matte*  wlio  collected  them,"  is  a  joint  owner  with  the 
congregation  of  the  pew  rents,  aud  is  not  guilty  of  eiubezzlemeut  in 
fraudulently  converting  tlie  pew  rents  to  his  own  use.  They  are  not  the 
property  of  anot/wr,  within  the  meaning  of  the  statute  against  embezzlement. 

Berky,  J. :  Section  23,  ch.  95,  Gen.  Stat.,  enacts  tliat  "  if  any 
officer,  agent,  clerk  or  servant  of  any  incorporated  company,  or  if 
any  clerk,  agent  or  servant  of  any  jirivate  person,  or  of  atiy 
copartnership,  *  *  *  embezzles  or  fraudulently  converts  to 
his  own  use,  *  *  *  without  consent  of  his  employer  or 
master,  any  money  or  property  of  another,  which  has  come  to  his 
possession  or  is  under  his  care  hy  virtue  of  such  em])loyinent, 
ho  shall  he  deemed  to  have  committed  larceny."  To  sustain  an 
indictment  imder  this  section  of  the  statute,  the  money  or  prop- 
erty charged  to  have  been  embezzled,  or  fraudulently  converted, 


■i^:' 


108 


AMERICAN  CRIMINAL  REPORTS. 


must  be  the  money  or  property  of  another  than  the  person 
indicated. 

The  defendant  was  collector  of  pew  rents  for  a  church  corpor- 
ation, and  acted  as  such,  under  a  special  and  express  agreement, 
by  which,  as  compensation  for  his  services,  he  was  to  have  "five 
per  cent  of  all  the  pew  rents,  no  matter  who  collected  them." 
The  effect  of  this  agreement  was  to  vest  in  defendant  an  undi- 
vided one-twentieth  interest  in  the  rents  collected,  and  to  that 
extent  to  make  him  an  owner  of  the  same,  jointly  with  the  cor- 
poration. In  other  words,  the  rents  collected  were  not  the 
money  or  property  of  the  corporation,  but  the  joint  property  of 
the  corporation  and  the  defendant.  They  were,  therefore,  not 
the  property  of  anotlier  than  the  defendant.  It  follows  that  the 
defendant  is  not  properly  indictable,  under  the  section  of  the 
statute  before  cited,  for  his  alleged  embezzlement  and  fraudulent 
conversion  of  the  same,  or  any  part  thereof :  Holme's  Case,  2 
Lewin,  256,  cited  2  Archbold  Cr.  Pr.  and  PL,  509,  note ;  Reg.  v. 
Bren,  cited  2  Bish.  Cr.  Law,  §  335,  note  3 ;  Jiex  v.  Hoggins^ 
Euss.  and  Ryan,  145 ;  Com.  v.  Stearns,  2  Met.,  343,  349 ;  Com. 
V.  Libhey,  11  Met.,  64;  Com.  v.  Foster^  107  Mass.,  221 ;  2  Bish. 
Cr.  Law,  §§  355,  356. 

This  conclusion  practically  disposes  of  the  case  in  defendant's 
favor.  Were  it  necessary  for  us  to  pass  upon  the  other  points 
presented  in  the  argument,  we  should  be  much  inclined  to  douht 
whether,  independent  of  the  agreement,  the  course  of  dealinj; 
between  the  corporation  and  the  defendant,  by  which  the  fornu'i' 
acquiesced  in  his  practice  of  depositing  the  rents  collected  on 
own  general  account,  and  of  treating  the  deposits  as  his  own,  w 
not  such  as  to  divest  the  corporation  of  its  specitlc^  ])roperty  in 
tliG  deposits,  and  to  establish  between  it  and  the  defendant  the 
eintple  relation  of  creditor  and  debtor.  See  Com,,  v.  TAhhcy,  11 
Met.,  04 ;  Com.  v.  Stearns,  2  Met.,  343.  If  this  doubt  be  well 
founded,  the  result  would  be  the  same  as  that  before  reached 
upon  the  construction  of  the  agreement. 

Judgment  and  order  refusing  new  trial  reversed. 


IIS 


IIS 


Ekbezzleme 


KRIBS  V.  PEOPLE. 


109 


Kbibs  v.  People. 

(83  111.,  425.) 

Ebibezzlemknt:   DisUndion  between  embezzlement  and  breach  of  eontraet— 
Evidence  —  Proving  other  embezzlementa. 

Where  money  is  placed  in  the  liunds  of  the  respondent,  to  be  loaned  for  one 
year  at  ten  per  cent  interest,  and  a  part  of  it  was  by  him  converted  to  his 
own  use,  if  the  defendant  acted  merely  as  an  agent  in  the  malter  lie  ia 
guilty  of  embezzlement;  but  if  he  guarantees  the  payment  of  ten  per  cent 
interest,  and  is  personally  liable  for  tlie  repayment  of  money,  no  embezzle- 
ment is  committed. 

In  a  prosecution  for  embezzlement  it  is  error  to  allow  evidence  to  be  given  of 
other  distinct  embezzlements. 

Feb  curiam  :  This  was  an  indictment  in  the  circuit  court  of 
Kane  county,  against  John  C.  Kribs,  for  embezzlement.  On  a 
trial  of  the  cause,  the  defendant  was  found  guilty  and  sentenced 
to  the  penitentiary  for  one  year. 

It  appears,  from  the  evidence  introduced  on  the  trial  of  the 
cause,  that  George  U.  Shaver,  on  the  26th  day  of  June,  1874, 
placed  in  the  hands  of  the  defendant  $550,  to  be  loaned  at  the 
rate  of  ten  per  cent  for  one  year.  A  receipt  was  given  for  the 
money,  which  was  as  follows : 

"Elgin,  III.,  June  26, 1874. 

"Received  of  George  U.  Shaver,  five  hundred  and  fifty  dol- 
lars, to  be  loaned  at  ten  per  cent,  for  one  year  from  this  date. 

"JOHN  C.  KRIBS." 

One  hundred  and  fifty  dollars  was  paid  back  to  Shaver  on  the 
i'th  day  of  November,  1874,  and  at  the  same  time  interest  was 
paid  on  the  entire  amount  to  the  Ist  day  of  December,  1874. 
The  balance  of  the  money  the  defendant  converted  to  his  own 
use. 

If  the  money  was  placed  in  the  hands  of  the  defendant  to  be 
loaned  for  one  year,  upon  real  estate  security,  at  ten  per  cent  per 
annum,  and  he  fraudulently  converted  the  same  to  his  own  use, 
the  defendant  would,  no  doubt,  be  guilty  of  the  offense  charged. 
If,  on  the  other  hand,  Shaver  placed  the  money  in  the  hands  of 
the  defendant  and  looked  to  him  for  a  ropayment,  and  relied 
upon  the  guaranty  of  the  defendant  for  ton  per  cent  interest 
from  the  time  the  money  was  paid  over,  then  no  conviction  could 
be  had.    While  wo  do  not  propose  to  express  any  opinion  on  the 


R^jtegig 

■i 
1 

^^^^^^l^^^l 

fi 

4 

A 


110 


AMERICAN  CRIMINAL  REPORTS. 


evidence,  yet  tlie  fact  that  the  defendant  guaranteed  ten  per  cent 
interest  from  tlie  date  tlie  money  was  received,  and  the  subse- 
quent payment  of  interest  on  the  money  to  December  1, 1874:,  in 
connection  with  the  agreement  to  repay  the  $400  on  tliirty  days' 
notice,  may  properly  raise  a  well  founded  doubt  in  regard  to  the 
guilt  of  the  defendant. 

The  proposition  is  too  plain  to  admit  of  argument,  that  if 
Shaver,  when  he  gave  the  money  to  the  defendant,  relied  upon 
his  honesty  or  responsibility  to  return  it,  with  ten  per  cent  inter- 
est, he  can  not  resort  to  the  criminal  laws  of  the  state  to  assist 
him  to  collect  the  debt. 

But,  aside  from  these  considerations,  the  record  discloses  an 
error  for  which  the  judgment  of  the  circuit  court  must  be 
reversed. 

On  the  trial,  the  court  allowed  the  people,  over  the  objection 
of  the  defendant,  to  prove  that  the  defendant  had  collected  or 
received  money  belonging  to  other  parties  and  on  several  occa- 
sions, which  he  had  fraudulently  converted  to  his  own  use.  This 
was  error.  The  evidence  should  have  been  confined  to  the 
charge  for  which  the  defendant  was  indicted.  On  the  trial  of 
this  indictment,  the  law  did  not  require  him  to  come  prepared  to 
meet  other  charges,  nor  does  it  follow  because  he  may  have  been 
guilty  of  other  like  offenses,  that  he  was  guilty  of  the  offense 
charged  in  the  indictment. 

The  evidence  should  have  been  confined  strictly  to  the  offense 
charged  in  the  indictment.  This  was  not,  however,  done,  but 
improper  testimony  was  allowed  to  go  to  the  jury,  which  could 
not  fail  to  prejudice  the  rights  of  the  defendant. 

For  the  error  in  the  admission  of  improper  evidence,  the  judg- 
ment will  be  reversed  and  the  cause  remanded. 

Judgment  reversed. 


Note.— An  agent  wlio  converts  to  his  own  use  money  Intrusted  to  him  by 
his  principal  for  the  purchase  of  land,  is  guilty  of  embezzlement:  State  t. 
//«a/y,  48Mo.,531. 

In  Com.  V.  Foster,  107  Mass.,  221,  the  evidence  was  as  follows:  The  prose- 
cutor delivered  two  notes  to  the  defendant,  on  the  special  agreement  of  the 
defendant  to  sell  the  notes  and  pay  over  the  proceeds  to  a  brother  of  the  prosi- 
cutor's,  charging  a  commission  for  his  services.  It  was  held  that  if  the  defend- 
ant was  emplo.ved  merely  to  sell  the  notes,  receive  the  proceeds,  and  piiy  tlie 
same  specifically  over  to  the  brother,  without  any  authority  to  mix  them  with 
bis  own  funds,  a  fraudulent  conversion  of  them  would  bo  embezzlement. 

In  State  v.  Foster,  37  Iowa,  404,  S.  C,   1  Am.  Crim.  Rep.,  140,  it  wu 


PEOPLE  V.  HUSBAND. 


Ill 


)  the  oflEense 


decifled  tbat  under  an  indictment  founded  on  the  ordinnry  statute  against 
embezzlement,  evidence  tbat  the  prosecutor  gave  the  prisoner  8  watch,  which 
the  prisoner,  as  agent  for  the  prosecutor,  was  to  trade  for  a  wagon  when  be 
could  find  a  suitable  opportunity,  and  for  which  service  the  prosecutor  was  to 
pay  the  prisoner  (5.00,  shows  a  sufficient  employment  to  make  the  prisoner 
guilty  of  embezzlement  in  converting  the  watch  to  his  own  use.  See  note  to 
People  V.  Hufiband,  p.  111. 


People  v.  Husband. 

(36  Mich.,  806.) 

Embezzlement  :    Inn-keeper  —  Fraudulent  eonveraion  of  baggage  —  SymboUeal 
delivery  —  Effect  of  inn-keeper'a  lien. 

Under  the  statute  (1  Laws  1S75,  p.  195),  making  one  to  whom  money,  goods, 
or  other  property  tlie  subject  of  larceny  shall  have  been  delivered,  and 
who  shall  embezzle  or  fraudulently  convert  the  same  to  his  own  use,  etc., 
guilty  of  larceny,  it  is  a  sufficient  delivery  of  trunks  and  baggage  where 
the  checks  for  the  same  are  delivered  to  respondent,  and  he,  acting  under 
the  authority  which  the  delivery  of  such  checks  gave  him,  has  assumed 
the  right  to  and  has  exercised  acts  of  posses.sion  aud  control  over  the 
trunks  and  baggage. 

The  fact  that  a  hotel-keeper,  to  whom  checks  for  baggage  have  been  delivered 
by  a  guest,  would  have  a  lien  upon  the  baggage  for  the  bill  of  such  guest, 
would  give  him  no  authority  to  di.spose  of  the  property  as  his  own,  and 
would  not  justify  his  conversion  of  the  same  to  his  own  use,  or  of  itself 
preclude  his  being  held  imder  said  statute,  on  the  ground  that  he  was  a 
bailee,  with  a  special  property  in  the  goods. 

And  instructions  to  the  jury,  that  in  case  they  found  defendant  claimed  to 
have  a  lieu  upon  the  goods,  and  thought  he  had  a  right  to  pledge  the 
goods  by  virtue  of  having  such  lien,  then  such  claim  of  right,  if  made  in 
good  faith,  would  negative  an  intent  to  deprive  the  owner  of  her  goods, 
are  as  favorable  in  this  regard  to  the  respondent  as  he  is  entitled  to 
demand. 

Exceptions  from  Kent  circuit. 

Otto  Kirchner,  attorney-general,  for  the  people,  cited :  2  East 
P.  C,  555  ;  Jiex  v.  Williams,  1  0.  and  K.,  195 ;  Archb.  Cr.  Pr. 
diid  PI.  (notes),  p.  361-2  (2). 

Atwood  (&  Corhitt,  for  respondent,  cited :  2  Bish.  Crim.  L., 
829,  and  cases  cited ;  Leake  v.  The  State,  10  Ilumpli.,  479. 

Makston,  J. :  An  information  was  filed  against  the  respon- 
dent, charging  him  with  having  fraudulently  and  feloniously 
secured  and  converted  to  his  own  use  certain  trunks  and  other 
property  of  the  value  of  fifty-five  dollars,  without  the  consent  of 


5     -f 


,  ;; 

4 

':             !'^ 

'.       1: 

ti* 

<       h 

1  B 

112 


AMERICAN  CRIMINAL  REPORTS. 


M 


the  owner  tli  reof,  and  that  he  thereby,  in  manner  and  form 
aforesaid,  fehj.  -usly  did  steal  and  carry  away  the  same  contrary 
to  the  statute,  lcc. 

The  statute,  under  which  the  information  was  filed,  reads  as 
follows : 

"  If  any  person  to  whom  any  money,  goods,  or  other  property, 
which  may  be  the  subject  of  larceny,  shall  have  been  delivered, 
shall  embezzle  or  fraudulently  convert  to  his  own  use,  or  shall 
secrete,  with  intent  to  embezzle,  or  fraudulently  uic  such  goods, 
money,  or  other  property,  or  any  part  thereof,  he  shall  be 
deemed,  by  so  doing,  to  have  committed  the  crime  of  larceny:" 
Act  JVo.  168,  Laws  1875,  vol.  l,p.  195. 

The  evidence  introduced  tended  to  show  that  the  respondent 
was  a  hotel-keeper,  and  that  as  such  he  had  received  from  the 
complaining  witness,  who  was  stopping  at  his  house,  three 
checks,  being  the  checks  to  her  trunks  then  at  the  depot,  with  a 
request  that  he  bring  the  trunks  to  the  house ;  that  complainant 
remained  at  his  house  some  five  weeks ;  that  although  she  ascer- 
tained that  her  trunks  had  been  removed  from  the  depot,  the 
same  had  not  been  brought  to  the  respondent's  house;  that 
respondent,  in  the  mean  time,  had  been  to  Detroit,  and  on  his 
return  she  spoke  to  him  about  her  trunks,  when  he  informed  her 
they  had  been  sent  to  Detroit,  but  he  would  have  them  back  in  a 
day  or  two. 

Evidence  was  also  given  that  on  April  24th,  1876,  some  ei^ht 
days  after  respondent  had  received  the  checks  he  was  in  Detroit, 
and  that  he  then  handed  the  checks  to  tlie  proprietor  of  a  hotel  in 
that  city,  who  handed  them  to  one  of  the  hotel  porters ;  that 
respondent  then  asked  the  porter  to  bring  the  baggage  wliicli 
the  checks  represented  to  the  house,  wliich  was  done ;  tliat 
respondent  left  the  hotel  before  the  bagga.^e  was  brought  in, 
and  did  not  return ;  and  that  the  baggage  thus  brought  into  the 
hotel  in  Detroit  was  the  trunks  and  property  of  the  complainant. 

The  property  was  afterwards  found  in  the  Detroit  hotel,  wliere 
it  was  detained  for  respondent's  hotel  bill.  Other  evidence  was 
introduced,  but  the  above  is  sufficient  in  order  to  enable  us  to 
understand  the  questions  raised.  The  respondent  was  convicted, 
and  the  case  comes  here  upon  exceptions,  before  sentence.  It  is 
insisted  that  the  property  was  in  the  hands  of  the  respondent  as 
bailee;  that  he  had  a  special  property  in  the  goods,  and  that 
under  such  circumstances  they  were  not  the  subject  of  larceny ; 


PEOPLE  V.  HUSBAND. 


ttt 


also,  that  the  property  was  never  delivered  to  the  respondent ; 
that  the  checks  only  were  delivered,  and  that  the  property 
remained  in  the  possession  of  the  railroad  company. 

It  is  true  that  the  complaining  witness  did  not  deliver  to  the 
respondent  the  actual  manual  possession  of  the  property,  but  she 
did  deliver  to  him  that  which  gave  him  the  right  to  the  control 
and  possession  of  the  property,  and  that,  acting  under  the  author- 
ity which  she  gave  him,  he  assumed  the  right  to  it,  and  did  exer- 
cise acts  of  possession  and  control  over  it. 

The  evidence  tended  to  show  that  the  disposition  of  the  prop- 
erty, as  made  by  him,  was  not  only  without  authority  in  fact 
from  the  owner  thereof,  but  that  it  was  in  fact  in  direct  viola- 
tion of  the  authority  she  had  given  him,  and  was  a  conversion  of 
the  same  to  his  own  use.  The  fact  that  she  was  a  guest  at  his 
hotel,  and  that  he  would  have  a  lien  upon  this  property  for  the 
amount  she  might  be  owing  him,  would  not  give  him  authority, 
under  the  facts  appearing  in  this  case,  to  dispose  of  the  property 
as  his  own.  His  good  faith  and  belief  that  he  had  such  right 
would  show  a  want  of  any  criminal  or  wrong  intent,  and  the 
jury  were  so  instructed.  An  examination  of  the  charge  shows 
the  case  to  have  been  presented  to  the  jury  in  such  a  form 
that  the  respondent  has  no  legal  cause  of  complaint.  They  were 
instructed,  in  case  they  found  that  the  respondent  had  abso- 
lute control  over  the  property,  by  means  of  the  checks, 
that  such  would  be  a  sufficient  delivery  of  the  possession  to 
him.  They  were  also  instructed,  that  in  order  to  lind  a  con- 
version, they  must  find  an  actual  conversion  by  the  respon- 
dent to  his  own  use,  and  also  an  intent  existing  at  the  time 
of  such  actual  conversion,  to  thereby  deprive  the  owner  of 
her  property  therein,  and  to  use  it  himself — that  in  case  they 
found  an  actual  p>)ssession  and  actual  conversion  in  Detroit,  and 
that  respondent  there  assumed  absolute  control  over  the  prop- 
erty as  his  own  goods,  they  must  also  find,  in  order  to  convict, 
the  intent  thorel)y  to  deprive  the  owner  of  her  property  therein, 
absolutely  and  entirely — that  if  he  had  any  intent  other  than 
this  the  offense  would  not  be  made  out.  The  jury  were  further 
instructed,  that  in  case  they  found  he  claimed  to  have  a  lien 
upon  the  goods,  and  thought  he  had  a  right  to  pledge  the  goods, 
by  virtne  of  having  such  lien,  then  such  claim  of  right,  if  made 
in  good  faith,  would  negative  an  intent  to  deprive  the  owner  of 
her  goods. 

Vol,.  II.— 8 


■k'U 


< 

)         » 


;  J 


:\  P 


i 

114 


AMERICAN  CRIMINAL  REPORTS. 


As  we  discover  no  error,  it  must  be  eo  certified  to  tlio  circuit 
court,  and  tliat  judgment  be  entered  on  the  verdict. 
The  other  justices  con^irred. 

Note. — It  will  be  observed  that  the  decision  in  this  case  is  based  upon  the 
Michigan  statute,  which  is  quoted  in  full  in  the  opinion  of  the  court..  This 
statute  is  very  much  broader  than  the  old  statute  against  embezzlement, 
which  applied  on'y  to  "clerks,  apprentices,  servants,  and  agents,"  witliin 
neither  of  which  designations  was  a  bailee,  or  one  who  received  the  property 
under  an  honest  contract,  included.  And,  therefore,  under  the  old  statute  a 
bailee  cannot  be  convicted  of  embezzlement,  although  he  might  of  larceny,  if 
he  hi.a  :he  intent  to  steal  the  goods  at  the  time  they  were  delivered  to  him. 

In  CoiH.  B.  Young,  9  Gray,  5,  it  appeared  that  leather  and  other  materials 
were  delivered  to  one  Bowen,  to  be  made  up  into  shoes  by  him,  in  his  own 
shop,  for  the  prosecutors,  and  that  instead  of  using  them  for  that  jmrpose  he 
sold  them  and  converted  the  proceeds  to  his  own  use.  It  was  held  that  tliis 
did  not  constitute  embezzlement;  and  in  People  v.  Burr,  41  How.  (N.  Y.)  Pr., 
293,  on  similar  facts  it  was  held  that  the  respondent  was  not  guilty  of  embez- 
zlement, the  decision  being  put  expressly  on  the  ground  that  he  was  a  bailee, 
and  therefore  not  within  the  act. 

And  so  in  Com.  v.  Williams,  9  Gray  461,  it  was  held,  that  one  was  not  guilty 
of  embezzlement,  under  the  old  statute,  on  the  following  state  of  facts :  The 
pro.si'cutor  went  into  a  Imardiag-house  kept  by  tlic  defendant  (with  whom  he 
had  previously  boarded,  but  did  not  then  board),  and  handed  him  a  roll  of 
bank-bills,  saying,  "Keep  this  till  to-morrow  morning  for  me."  On  the  fol- 
owing  morning  tlie  defendant  denied  ever  having  received  the  money,  and 
refused  to  give  it  up,  and  fraudulently  converted  it  to  his  own  use. 

In  Com.  V.  Butterick,  100  Mass.,  1,  it  is  lield  that  "the  disposal  of  collattsal 
security  by  the  holder,  before  the  debt  of  which  it  was  deposited  with  him  to 
secure  I  lie  payment  becomes  due  and  payable  to  him.  *  *  *  is  not  indict- 
able as  embezzlement  under  Gen.  Stat.,  c.  101,  sec.  35. 

For  other  authorities  on  this  topic,  see  note  to  Kribs  v.  People,  p.  109. 


Keibs  v.  People. 

(81  111.,  599.) 

Embezzlement:    Indictment  —  Distinction  between  embezzlement  and  larceny. 

Under  a  statute  against  embezzlement,  which  provides  that  "  whoever 
embezzles,  etc. ,  •  *  *  shall  be  deemed  guilty  of  larceny,  an  indict- 
ment charging  simply  an  ordinary  larceny  is  insufficient,  and  no  convic- 
tion of  an  offense  under  the  statute  can  lawfully  be  had. 

An  indictment,  under  such  a  statute,  must  set  out  the  facts  constituting  the 
embezzlement,  and  then  aver  that  so  the  defendant  committed  the 
larceny. 

Nothing  which  was  larceny  at  common  law  is  included  witLin  the  statutes 
against  embezzlement. 


KRIBB  V.  PEOPLE. 


Mr.  Justice  Sciiolfikld  delivered  the  opinion  of  the  conrt. 

It  is  not  claimed  by  the  state  that  the  defendant  is  otherwise 
guilty  than  under  the  seventy-fourth  section  of  the  Criminal 
Code,  entitled  "Embezzlement,"  which  is  as  follows:  "Who- 
ever embezzles  or  fraudulently  converts  to  his  own  use,  or 
secretes,  with  intent  to  embezzle  or  fraudulently  convert  to  his 
own  use,  money,  goods,  or  property  delivered  to  him,  which 
may  be  the  subject  of  larceny,  or  any  part  thereof,  shall  be 
deemed  guilty  of  larceny." 

The  indictment  is  for  larceny,  simply,  as  at  common  law. 

The  uniform  construction  of  similar  acts,  both  in  this  country 
and  in  England,  is,  "  that  the  indictment  must  set  out  the  acts  of 
embezzlement,  and  then  aver  that  so  the  defendant  committed 
the  larceny : "  2  Bishop's  Criminal  Procedure,  §  281 ;  2  Whar- 
ton's Criminal  law  (ed.  of  1841),  281,  282,  283 ;  3  Waterman's 
Arcbbold  on  Practice,  Pleadings  and  Evidence  in  Criminal 
Cases,  p.  446,  1,  2,  3,  4,  5,  6,  and  notes. 

The  defendant's  fiduciary  character,  which  is  the  distinguish- 
ing feature  between  embezzlement  and  larceny,  must  be  spe- 
cially averred  :  Com.  v.  Simpson,  9  Mete,  13 ;  People  v.  Cohen, 
8  Cal,  42  ;  Com.  v.  Smart,  6  Gray,  15 ;  Com.  v.  Wyman,  8  Mete, 
247 ;  Com.  v.  Merrifield,  4  Id.,  468 ;  People  v.  Tryon,  4  Michi- 
gan, 665 ;  People  v.  Allen,  5  Denio,  76 ;  Pex  v.  Johnson,  3  M. 
and  S.,  539 ;  Hex  v.  Creighton,  Puss,  and  Py.,  62.  And  this 
I'ule,  instead  of  being  changed,  is  expressly  recognized  by  section 
eighty-two  of  the  Criminal  Code  (R.  L.  1874,  p.  364),  which  pro- 
vides that,  in  indictments,  in  cases  under  the  statute  relating  to 
embezzlements,  "  it  shall  be  sufficient  to  allege  generally  in  the 
indictment  an  embezzlement,  fraudulent  conversion,  or  taking 
with  such  intent,  of  funds  of  such  person,  bank,  incorporated 
company,  etc.,  to  a  certain  value  or  amount,  without  specifying 
any  particulars  of  such  embezzlement." 

We  are  referred,  however,  by  the  attorney-general,  to  Welch  v. 
The  People,  17  111.,  339,  and  St'mson  et  al.  v.  The  People,  43 
Id.,  307,  as  settling  the  law  in  this  state,  that  evidence  of  an 
embezzlement  will  authorize  a  conviction  for  larceny. 

This  is  a  misapprehension  as  to  the  effect  of  what  was  decided 
in  those  cases. 

Tlie  convictions  there  were  for  larcenies,  as  at  common  law, 
and  no  question  was  raised  or  discussed  under  the  statute  relating 
to  embezzlements,  and  it  was  held,  in  both  cases,  the  evidence 


lit 


AMERICAN  CRIMINAL  REPORTS. 


authorized  the  jury  in  finding  that  the  defendant,  in  obtaining 
possession  of  the  property,  in  the  first  instance,  did  so  with  a 
felonious  intent.  The  distinction  between  larceny  and  obtaining 
goods  under  false  pretenses,  was  the  turning  point  in  each  case, 
and  it  was  thus  pointed  out  in  Stinson's  case :  "  If  the  owner  of 
goods  alleged  to  have  been  stolen,  parts  with  both  the  possession 
and  the  title  to  the  goods,  to  the  alleged  thief,  then  neither  the 
takins:  nor  the  conversion  h,  felonious.  It  can  but  Jiinount  to  a 
fraud ;  it  is  obtaining  goouP  andev  false  pretenses.  If,  however, 
the  owner  parts  with  tli<^  possession  voluntarily,  but  does  not 
part  with  the  title,  expecting  and  intending  the  same  thing  shall 
be  returned  to  him,  or  that  it  shall  be  disposed  of  on  his  account, 
or  in  a  particular  way,  as  directed  or  agreed  upon,  for  his  benetii, 
then  the  goods  may  be  feloniously  converted  by  the  bailee,  so  as 
to  relate  back  and  make  the  taking  and  conversion  a  larceny,  if 
the  goods  were  obtained  with  that  intent." 

But  the  section  of  the  Criminal  Code  quoted,  relates  to  a  class 
of  cases  which  were  not  larceny  at  common  law.  It  is  said  by 
eminent  writers  on  criminal  law,  that  the  slatutes  in  relation  to 
embezzlement  "were  passed  solely  and  exclusively  to  provide 
for  cases  which  larceny  at  common  law  did  not  include.  Hence, 
nothing  that  was  larceny  at  common  law  is  larceny  under  the 
embezzlement  statutes;  and  nothing  that  is  larceny  under  tho 
embezzlement  statutes  is  larceny  at  common  law  :  "  2  Wharton's 
Ciriminal  Law  (7th  ed.),  1905. 

Here  the  defendant  sold  a  town  or  city  lot  for  the  prosecutor, 
ii.  under  his  instructions,  previously  given,  it  was  defendant's 
duty  to  loan  the  money  at  interest,  on  good  security,  for  tho 
prosecutor;  but,  instead  of  complying  with  these  instructions, 
he  lost  the  money  at  gaming.  The  prosecutor  never  had  tho 
money  in  his  possession  at  any  time,  and,  therefore,  at  common 
law,  the  offense  could  not  have  been  larceny  :  2  Wharton's 
Criminal  Law  (7th  ed.),  §§  1830,  a  (p.),  1846,  b  (g.) 

The  evidence  not  being  sufficient  to  sustain  the  conviction  for 
larceny,  the  judgment  must  be  reversed. 

Judgment  reversed. 


STATE  c.  LEIOHAM.  117 

State  v.  Leicuam. 

(41  Wis..  5C5.) 

Ehbbzzlembnt:  Larceny  by  agent  —  Informatiom  —  Constitutional  Law  — 
Practice  —  Preliminary  examination;  what  sufflcient — Discretion  of  dis- 
trict attorney  as  to  crime  to  be  charged  in  information  —  Absence  of  prelimU 
nary  examination;  liovo  nhuwn  —  Several  counts;  compelling  prosecution  to 
elect — What  evidence  is  a  sufficient  basis  for  filing  an  information. 

Since  tlie  amendment,  in  1870,  of  sec.  8,  art.  1,  of  the  Constitution  of  Wis- 
consin, the  legislature  seems  to  have  full  power  to  prescribe  by  whom,  in 
what  manner,  and  under  what  circumstances,  an  information  may  be 
exliibitcd  against  any  person  for  any  criminal  offense. 

iiformil  adjudication,  after  a  preliminary  examination  by  the  committing 
magistrate  that  the  offense  charged  in  the  complaint  has  been  committed, 
and  that  there  is  probable  cause  to  believe  the  accused  guilty  thereof,  is 
not  required  (R.  S.,  ch.  170,  sec.  19;  Tay.  Stats.,  1920,  §  19),  as  a  basis 
for  tiling  an  information,  but  it  is  enough  that,  upon  such  examination 
(or  a  waiver  thereof),  the  accuscJ  has  been,  by  such  magistrate,  held  to 
hail,  or  commi  ted,  to  answer  for  an  offense. 

Under  ch.  190,  of  1875,  where  the  accused  has  been  thus  held  to  bail  or  com- 
mitted, the  information  filed  by  the  district  attorney  need  not  be  for  the 
offense  charged  in  the  complaint  before  the  magistrate,  but  may  be  for 
any  offense  which  the  testimony  taken  on  the  examination  shows  the 
accused  to  have  committed;  but  the  district  attorney  may  exhibit  an 
information  as  for  a  felony,  if  in  his  o])inion  the  testimony  so  taken  proves 
the  accused  guilty  thereof,  though  the  magistrate  may  find  him  guilty  of 
a  misdemeanor  only. 

The  fact  that  there  has  been  a  preliminary  examination  need  not  be  stated  in 
the  information,  or  shown  affirmatively  by  the  prosecution  (Peterson  v. 
The  State,  unreported);  and  when  the  defendant  relies  upon  the  absence 
of  such  an  examination,  it  seems  that  the  better  practice  is  to  plead  it  in 
abatement  before  pleading  to  the  merits;  and,  if  issue  is  joined  ou  such  a 
l)l(a,  the  burden  of  proof  is  upon  the  accused. 

It  is  a  matter  within  the  discretion  of  the  trial  court,  whether  the  district 
niiorncy  shall  be  required  to  elect  upon  which  of  several  counts  in  the 
information  he  will  proceed,  and  the  determination  of  that  court  will  not 
til'  reversed,  except  for  an  abuse  of  discretion. 

In  im  information  under  see.  27,  ch.  105,  U.  8.,  one  count  was  for  larceny  by 
a  fraudulent  conversion  of  chattels,  which  came  Into  defendant's  posses- 
sion as  an  asrcnt,  and  a  second  coiuit  was  for  larceny  by  a  like  conversion 
of  ?«««<// received  by  him  as  such  agent;  and  it  was  admitted  that  bolli 
counts  were  l)ased  upon  the  same  transaclion.  Ifeld,  that  there  was  no 
error  In  rofusinu  to  recinlro  the  prosecution  to  elect,  before  the  evidence 
was  in,  on  which  rouni  it  would  proceed, 

Defendant  being  in  possession  of  ccrlain  machines  as  agent  of  the  owners  for 
their  sale,  etc.,  and  bound  by  his  contract  wilh  them  to  .sell  upon  certain 
terms  and  conditions,  sold  to  M.  some  of  said  macliiiics  for  (he  purpose  of 
getting  money  from  M,  with  wliiijh  to  pay,  and  wilh  which,  pursuant  to 


'  'i 


li'! 


'■ 


118 


AMERICAN  CRIMINAL  REPORTS. 


astipulntion  with  M.,  he  did  immediately  pay,  an  indebtedness  of  liij 
own,  for  which  M.  was  surety.  M.  tooli  and  held  possession  of  the 
machines,  having  stipulated  with  defendant  that  the  latter  might  pur- 
chase them  hack  by  repaying  the  money  so  advanced.  These  transac- 
tions were  without  tlic  consent  or  knowledge  of  defendant's  principals, 
and  in  violation  of  llw  terms  of  his  contract  with  them,  and  he  has  never 
accounted  to  them  for  such  machines;  and  tlie  evidence  excludes  the 
supposition  tliat  he  did  not  know  that  the  macliines  were  their  property, 
which  he  was  converting  to  his  own  use.  JMil,  that  the  fact  (if  .siiown) 
that  defendant  Ijelieved,  when  he  converted  the  property,  that  he  would 
be  able  to  pay,  and  intended  to  pay,  the  owners  for  it  wlicn  he  should  be 
required  to  account  for  it,  does  not  relieve  the  act  of  its  fraudulent  and 
criminal  character. 

The  foregoing  facts  being  proven,  the  court  did  not  err  in  refusing  to  eliurjje 
that  if  defendant  so  construed  the  written  contract  (with  his  employers) 
that  he  honestly  supposed  he  had  a  right  to  sell  the  machines  and  use 
the  proceeds,  and  afterwards  account  to  the  owners;  and  if,  in  the  trans- 
action, he  acted  under  that  impression  and  in  good  faith,  the  jury  should 
not  find  him  guilty. 

Nor  was  it  error  to  instruct  the  jury,  in  such  a  case,  that  If,  at  the  time 
alleged,  defendant  sold  any  of  said  machines,  or  turned  them  out  as 
security  for  the  purpose  of  paying  his  own  indebtedness,  without  the  con- 
sent of  his  principals,  ho  was  guilty  as  charged  in  the  first  count  of  the 
information. 

The  case  distinguished  from  Com,  v.  AVaj/vh,  2  Met.,  J343,  and  Com.  v.  Lihliei/, 
11  Id.,  (J4,  decided  under  a  like  statute,  by  the  fact  lliat  there  was  here  a 
special  agency,  and  tluit  the  right  of  property  and  the  possession  remiiiued 
in  the  principals. 

Whether  cli.  85  of  ISTil  supersedes  in  a  case  like  this,  sec.  27,  ch.  165,  U.  S,, 
under  whicli  the  information  was  drawn,  and  reduces  the  oCfense  to  a 
misdemeanor,  and  whether,  consecpiently,  only  the  punisliment  prescribed 
by  the  act  of  1873  can  be  inflicted,  cannot  be  determined  upon  exceptions 
taken  before  judgment,  but  only  on  an  appeal  from  the  judgment 

On  exceptions  from  the  circuit  court  for  Sank  county. 

An  information  was  filed  in  tlio  circuit  court,  by  tlio  district 
attorney,  under  sec.  27,  di.  1G5,  R.  S.  (Tay.  Stats.  18+4,  5^  ;50), 
char{i;in}jr  tliat  iho  defendant  had  committed  the  crime  of  larcony, 
by  fraudulently  converting  to  his  own  use  throe  seed-sowers  or 
cultivators,  of  the  value  of  $22.5,  the  property  of  the  copartner- 
ship of  Van  Brunt,  Harher  tfc  Co.,  which  machines  came  into 
his  possession  by  virtue  of  his  employment  by  that  firm  as  it« 
agent  to  sell  the  same.  The  information  contains  a  second  count 
under  the  same  statute,  for  the  fraudulent  (H)nversi()n  of  $t;{(»  of 
the  money  of  such  firm,  rocc'ived  by  the  defendant  as  such  a^unt, 
by  virtue  of  such  employment. 

At  the  commencement  of  the  trial  the  dofondant  niovod  tlio 


STATE  V.  LEICHAM. 


119 


court  to  require  the  district  attorney  to  elect  on  which  count  of 
the  information  lie  would  proceed,  but  the  court  refused  to  do  so. 
Tlie  district  attorney  conceded,  however,  that  there  coiild  be  a 
eonviction  on  but  one  of  the  counts,  and  after  the  testimony  was 
all  in  he  elected  to  abandon  the  second  count,  and  to  proceed  on 
the  first  count  alone. 

The  jury  found  the  defendant  guilty  on  the  first  count,  and 
the  court  overruled  a  motion  in  arrest  of  judgment  and  a  motion 
for  a  new  trial.  Thereupon  the  defendant  exhibited  exceptions 
to  certain  rulings  and  directions  of  the  court  on  the  trial  in  mat- 
ters of  law,  which  exceptions  were,  during  the  same  term, 
reduced  to  writing,  and  allowed  and  signed  by  the  judge,  in 
accordance  with  the  statute :     R.  S.,  ch.  180,  sec.  7. 

The  defendant  duly  recognized,  as  required  by  section  nine, 
and  the  circuit  court  granted  a  stay  of  proceedings  until  the 
exceptions  should  be  determined  by  this  court. 

A  further  statement  of  the  case,  with  the  exceptions  relied 
upon  by  the  defendant,  will  be  found  in  the  opinion. 

Bu7'i'  II.  Jone»^  for  the  defendant,  argued  that  the  examina- 
tion before  the  magistrate  having  been  upon  a  charge  of 
"improperly  disposing  of  property  by  an  agent,"  under  ch.  85  of 
1S73,  and  that  being  only  a  misdemeaiior,  to  which  a  compara- 
tively slight  punishment  is  attached,  it  was  not  competent  for 
the  district  attorney  to  bring  the  defendant  to  trial  upon  an  infor- 
mation drawn  under  sec.  80,  ch.  165,  Tay.  Stats.,  for  a  felony 
punishahlo,  iis  the  prosecution  claims,  by  continemont  for  not 
less  than  a  year  in  the  state  prison. 

It  is  true  that  ch.  190  of  1875  purports  to  confer  upon  the  dis- 
trict attorney  a  very  wide  and  a  very  dangerous  discretion;  but, 
(1)  Even  under  that  statute  he  exceeds  his  jurisdiction,  when  he 
tiles  an  information  not  supported  by  the  "  written  testimony  " 
taken  on  the  examination;  and  it  is  submitted  that  such  testi- 
mony, in  this  case,  did  iu)t  support  a  charge  of  larceny.  (2)  The 
stiitute  of  1875  is  subject  to  the  declaration  of  rights  (Const,  of 
Wis.,  art.  1,  sec.  7),  which  gives  the  accused  the  right  to  know 
tile  nature  atul  cause  of  the  accusation  against  him ;  and  this 
f'onstitutioiuil  right  is  meaningless  if  there  is  not  some  limit  to 
the  (liscretictn  wliich  the  proseciiting  otllcer  may  exercise  in  filing 
informations  for  offenses  of  a  different  character  and  grade  fn»m 
those  charged;  and,  if  there  is  any  limit,  this  is  a  case  in  which 
it  should  bo  defined.     2.  That  ch.  85  of  1S73  in  part  repeals  the 


■  I 


i 


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AMERICAN  CRIMINAL  REPORTS. 


earlier  statute ;  or  that,  at  least,  where  the  trial  discloses  a  state 
of  facts  and  an  offense  such  as  is  covered  by  the  act  of  1873, 
I'voii  tliouo-h  it  may  also  be  under  the  terms  of  the  earlier  statute, 
tlio  li^liter  punishment  imposed  by  tlie  later  statute  can  alone  be 
inflicted  :    Serinflgrour  v.  The  State,  1  Chand.,  48.     3.  That  the 
circuit  court  had  no  jurisdiction,  because  the  defendant  had  not 
been  held  to  trial  by  the  laioful  order  of  an  examining  magis- 
trate.    The  record  of  the  examining  magistrate  states  that  he 
"finds,  from   the  testimony,  reason  to  believe   the  defendiiiit 
guilty  of  larceny."    But  the  statute  (Tay.  Stats.,  ch.  190,  §  19). 
requires  the  magistrate  to  adjudge   "that  an  offense  has  beciii 
connnitted,  and  that  there  is  probable  cause  to  believe  the  ])rk- 
oner  guilty."     Such  an  adjudication  is  necessar}  to  confer  juris- 
diction upon  the  circuit  court.     The  information  alone  cannot 
confer  jurisdiction,  because  it  cannot  lawfully  be  filed  until  after 
such  an  exatnination  as  the  statute  prescribes:     Sec.  7,  ch.  137  of 
1871.     The  finding  of  the  magistrate,  under  the  present  system, 
seems  no  less  important  and  jurisdictional  than  was  the  fiiuliug 
of  the  grand  jury  under  the  former  system.     If,  in  a  mere  quasi- 
criminal  action,  importance  is  to  be  attached  to  the  finding  of  the 
magistrate,  as  affecting  the  jurisdiction  of  the  circuit  court  {Sfnte 
V.  Braun,  31  Wis.,  601),  it  would  be  remarkable  that  his  finding 
and  adjudication  should  be  treated  as  a  mere  matter  of  form  in 
an  action  like  the  present.     4.  That  the  court  erred  in  not  requir- 
ing the  prosecuting  attornciy  to  elect,  before  the  trial,  upon  which 
count  of  the  information  he  would  proceed.     In  cases  of  felony, 
where  it  is  plain,  as  in  this  case,  that  a  refusal  to  compel  an  elec- 
tion may  confuse  the  j)risoner  and  distract  the  jury,  such  refusal 
is  error.     If  the  prisoner  must  hoar  a  mass  of  testimony  agiiinst 
him,  raising  vague  susjiicions  of  numerous  offenses,  and  nuist 
enter  upon  his  evidence  mi  defense,  without  knowing  which  of 
several  charges  he  is  to  defend  against,  that  constitutional  pro- 
vision which  gives  him  the  right  to  know  the  nature  and  cause  of 
the  accusation  against  him  becomes  a  form  of  idle  words:     State 
V.  Fee,  19  Wis.,\5({.5 ;  State  v.  Gnwmer,  22  Id,  441  ;  1  Hish.  Cr. 
Pr.  (1st  ed.),  213 ;  LI  (2d  ed.),  422. 

5.  Tliiit  the  court  erred  in  its  ijistructions  to  tlic  jury,  as: 
(1)  In  instructing  them  that,  under  the  contract,  tlio  defendant 
was  an  agent,  whereas  the  question  of  agency  was  one  of  fact  for 
the  jury.  (2)  In  charging,  substantially,  that  if  defendant  sohi 
the  property  and  used  the  proceeds  witiiout  the  consent  of  liis 


STATE  V.  LEICHAM. 


employers,  he  was  guilty  of  embezzlement;  ignoring  the  fact 
that  defendant  had  a  right  to  construe  the  contract  for  himself  in 
his  dealings  with  his  employers,  and  that  though  an  error  of 
judement  on  his  part  might  not  avoid  a  civil  liability,  yet  such 
error,  couxmitted  in  good  faith,  might  be  a  perfect  defense  to  a 
criminal  action,  the  felonious  intent  being  a  necessary  element  of 
the  crime.  The  evidence  shows  a  course  of  dealing  between  tlie 
parties  in  which,  notwithstanding  the  written  contract,  a  large 
discretion  was  vested  in  the  defendant,  as  is  almost  invariably  the 
vjaso,  and  necessarily  so,  wliere  such  contracts  are  entered  into. 
Defendant  received  different  payment  from  that  required  in  the 
contract,  and  in  various  ways  they  ratifieil  his  acts.  Under  such 
circumstajices,  it  was  error  to  instruct  the  jury  that  the  defendant 
was  guilty  if  he  turned  out  or  sold  machines  for  paying  his  own 
indebtedness  without  the  employers'  consent.  And  the  error  of 
the  general  instructions  was  not  cured  by  giving  instructions  at 
defendant's  request,  submitting  to  the  jury  the  question  of  intent. 

6.    That  the  statute  under  which  the  information  was  drawn, 

n       is  taken  from  Massachusetts,  and  the  cases  of  Com.  v.  Stearns,  2 

Met.,  343,  and  Com.  v.  Libherj,  11  Id.,  64,  show  that  it  never  was 

the  intention  of  the  legislature  to  include  this  class  of  cases 

within  it. 

The  Attornei/- General,  for  the  state,  contended :  1.  That  it 
was  not  error  to  refuse  to  compel  the  district  attorney  to  elect, 
before  the  evidence  was  in,  upon  which  count  he  would  proceed. 
Such  an  election  is  never  required  unless  the  counts  are  for  actu- 
ally distinct  offenses,  and  may  confuse  the  defendant  or  the  jury: 
Sfafe  V.  Glimmer,  22  Wis.,  441 ;  Miller  v.  The  State,  25  Id.,  384. 
Several  counts  may  be  necessary  to  enable  the  state  to  meet  pos- 
sible contingeucies  in  respect  to  the  evidence ;  an  election  at  the 
close  of  the  evidence  is  sufficient  to  secure  the  defendant  all  his 
rights,  and  the  matter  is  always  in  the  discretion  of  the  court : 
Whart.  Cr.  L.,  §§  422,  et  seq.  2.  That  the  objection  on  the 
ground  that  there  was  no  preliminary  examination,  was  not  well 
tiikon.  (1)  The  statute  is  directory  in  that  respect,  and  §  23,  ch. 
179,  Tay.  Stats.  (1930),  recognizes  the  right  of  the  district  attor- 
ney to  lilo  an  inf(»rmati(»n  without  a  preliminary  examination. 
{i)  It  docs  not  iitlini\;itively  apppiir  that  no  preliminary  examinii- 
tion  was  liiid  :  Pticrno)),  v.  7h<'  Sfufe,  unreported.  A  statement 
\a)  tliiit  eH'i'ct  in  the  motion  in  arrest  of  judgment  is  not  suf- 
li(Ment:     GriNWo/d  ii   The  State,  24  Wis.,   114.     Nor  does  it 


1 


122 


AMERICAN  CRIMINAL  REPORTS. 


appear  that  defendant  was  not  a  fugitive  from  justice,  and  thus 
within  the  exception  of  §  22,  Peterson  v.  The  State.  (3)  There 
was  in  fact  a  preliminary  examination,  and  the  proceedings  before 
tlie  examining  magistrate  form  j^art  of  the  record.  The  exami- 
nation  was  for  the  same  offense,  in  substance,  that  is  cliarged  la 
the  information,  and  is  a  compliance  with  the  statute,  ch.  190, 
Laws  of  1875.  S.  That  there  was  no  error  in  giving  or  refusing 
instructions.  (-'■w  implies  the  intent  from  the  act.     The 

giving  of  the  ■  o  ^ale  was  a  conversion,  fraudulent  in  its 
effects  ;  a  fraudulent  use  of  the  property  to  the  injury  of  the  own- 
ers. Good  i.  Icntions  in  respect  to  redeeming  or  saving  the 
owners  harmless,  a,  of  ..  .vail.  Siich  a  construction  would 
virtually  repeal  all  statutes  in  relivcion  to  embezzlement:  United 
States  V.  Taintor,  11  Blatchf.,  374.  4.  That  ch.  85  of  1873  did 
not  repeal  or  affect  §  30,  ch.  165,  Tay.  Stats.  The  former 
refers  to  a  sale  of  property  by  the  agent  on  terms  not  authorized 
by  the  owner,  and  does  not  refer  to  a  fraudulent  conversion  or 
embezzlement. 


Lyon,  J. :  It  is  claimed  that  there  was  no  preliminary  exami- 
nation of  the  defendant  for  the  crime  charged  in  the  .nformation, 
and  hence  that  the  district  attorney  had  no  authority  to  file  the 
information,  and  that  the  defendant  was  illegally  tried  under  it 
for  the  offense  charged  therein.  The  only  ruling  of  the  court 
which  presents  this  question,  is  the  denial  of  the  motion  in  arrest 
of  judgment  founded  in  part  upon  such  alleged  absence  of  a  pre- 
liminary examination. 

Before  the  information  was  filed,  a  complaint  in  writing  under 
oath  was  made  to  a  justice  of  the  peace,  against  the  defendant, 
charging  him  with  having  disposed  of  two  seed-sowers  or  culti- 
vators contrary  to  the  written  or  printed  instructions  of  Van 
Brunt,  Barber  &  Co.,  his  principals  and  the  owners  of  the 
machines,  by  moans  whereof  that  firm  sustained  damage,  etc. 
This  complaint  evidently  charged  an  offense  under  ch.  85,  Laws 
of  1873,  and  was  drawn  with  reference  to  that  statute.  A  crimi- 
nal warrant  was  issued  on  such  complaint  by  the  justice,  and  the 
defendant  was  arrested  and  brought  before  the  justice,  and  a 
preliminary  examination  was  had.  The  testimony  taken  on  such 
examination  tends  to  show  the  defendant  guilty  of  the  offen^^o 
charged  in  the  information.  The  justice  entered  a  finding  and 
order  as  follows :     "  The  court  finds,  from  the  testimony,  reason 


STATE  V.  LEICHAM. 


123 


to  believe  tlie  defendant  giiilty  of  larceny  as  defined  in  the 
statutes  of  "Wisconsin,  and  he  is  held  to  bail  in  the  snm  of  $500 
for  his  appearance  at  the  next  term  of  the  circuit  court  for  Sauk 
county."  The  proceedings  before  the  justice  on  such  examina- 
tion, with  the  testimony  taken  thereon,  were  returned  by  the 
justice  to  the  circuit  court,  and  have  been  sent  to  this  court  with 
the  record  of  the  case.  In  the  view  we  have  taken  of  the  case, 
it  is  not  necessary  to  determine  whether  a  district  attorney  may 
lawfully  file  an  information  against  a  person  not  a  fugitive  from 
justice,  without  a  preliminary  examination  before  a  committing 
magistrate.  Probably  he  has  no  authority  to  do  so,  and  for  the 
purposes  of  this  case  it  will  be  assumed  that  he  has  not.  See 
Laws  of  1871,  ch.  137,  sec.  7  (Tay.  Stats.,  1930,  §  22). 

Since  the  adoption,  in  1870,  of  the  amendment  to  sec.  8,  art. 
1  of  the  constitution,  by  virtue  of  which  amendment  informa- 
tions have,  to  a  great  extent,  taken  the  place  of  indictments,  the 
legislature  seems  to  have  full  power  to  prescribe  by  whom,  in 
what  manner,  and  under  what  circumstances,  an  information  may 
be  exhibited  against  any  person  for  any  criminal  offense.  In  the 
case  of  fugitives  from  justice,  the  act  of  1871,  supra,  vests  the 
power  to  file  an  information  without  a  preliminary  examination 
in  the  district  attorney^  In  other  cases,  we  assume  (as  before 
stated)  that,  under  such  act,  there  must  have  been  a  preliminary 
examination  for  a  criminal  offense  before  a  committing  magis- 
trate, and  a  commitment  or  holding  to  bail  to  answer  therefor, 
before  an  information  could  lawfully  be  filed. 

It  is  not  essential,  aa  claimed  by  the  learned  counsel  for  the 
defendant,  that  there  shall  be  a  formal  adjudication  by  the  magis- 
trate that  the  offense  has  been  committed  and  that  there  is  prob- 
able cause  to  believe  the  accused  guilty  thereof.  The  statute 
does  nut  so  require  :  R.  S.,  ch.  170,  sec.  19  (Tay.  Stats.,  1920, 
§  19).  It  simply  directs  the  magistrate  to  hold  the  accused  to 
bail  or  commit  him,  when  it  shall  bo  made  to  appear  that  an 
offense  has  been  committed  and  there  is  probable  cause  to  bcirevo 
liitn  guilty;  and  the  fact  that  the  magistrate  holds  to  bail  or 
commits  is  equivalent  to  such  formal  adjudication.  It  was  sub- 
stantially so  held  in  Rimhhopfv.  The  Sf,th\  34  Wis.,  21 7,  in  which 
case  certain  ronuirks  in  the  opinion  in  77i('  Sfaft'  e,r  rel.  D'dworth 
V.  liraun,  31  Id.,  000,  relied  upon  as  assorting  a  different  doc- 
triiio,  are  qualified  or  explained.  Tlieso  were  cases  under  the 
bastardy  act ;  but  so  far  as  the  necessity  of  a  formid  adjudica- 


■  '! 


A.  \ 


w 


m 


AMERICAN  CRI^IINAL  REPORTS. 


tion  is  ooTiccriierl,  the  doctrine  of  the  Kindskopf  case  is  applicable 
to  tiiif*  Of  ii!iy  otlier  criminal  case. 

It  may  i'uriher  be  assumed  that,  under  the  act  of  1871,  the 
district  attorney  could  only  file  an  information  for  the  oifense 
for  which  the  accused  was  committed  or  held  to  bail,  and  that  if 
he  exhibited  an  information  for  another  offense,  such  information 
would,  in  a  proper  proceeding,  be  adjudged  invalid. 

But  the  act  of  1871  has  been  modified  in  an  important  par- 
ticular, and  the  powers  of  the  district  attorney  in  respect  to  tlie 
tiling  of  informations  greatly  enlarged,  by  subsequent  legislation, 
('h.  190,  Laws  of  1875,  authorizes  the  district  attorney,  after  an 
examination  for  a  criminal  offense  which  results  in  a  commit- 
ment of  the  accused  or  in  holding  him  to  bail,  "  to  file  an  infor- 
mation setting  forth  the  crime  committed  according  to  the  facts 
ascertained  on  such  examination  and  from  the  written  testimony 
taken  thereon,  whether  it  be  the  same  offense  charged  in  the 
complaint  on  which  the  information  was  had  or  not." 

Manifestly,  under  this  statute,  if  the  accused  has  had  a  pre- 
liminary examination  before  a  committing  magistrate,  and  has 
been  committed  or  held  to  bail  by  such  magistrate,  the  district 
attorney  may  exhibit  an  information  against  the  accused,  and 
bring  him  to  trial,  for  any  criminal  offense  which  the  testimony 
taken  on  the  examination  shows  that  he  has  committed.  And 
we  think  the  district  attorney  is  not  bound  by  the  opinion  or 
even  the  adjudication  of  tlie  magistrate  upon  the  testimony,  as 
to  what  crime  has  been  committed  by  the  accused.  The  com- 
plaint (as  in  the  present  case)  may  be  for  a  misdemeanor,  and  the 
magistrate  may  find  that  the  accused  is  guilty  of  a  misdemeanor 
only ;  yet,  if  the  testimony  on  the  examination  shows  that  he  is 
guilty  of  a  felony,  the  district  attorney  may  lawfully  file  an 
indictment  for  a  felony. 

The  rule  would  be  the  same  were  the  conditions  reversed.  If 
the  complaint  and  finding  were  for  a  felony,  and  the  testimony 
sho^'ed  that  the  accused  was  guilty  of  a  misdemeanor  only,  tlio 
distri(!t  attorney  would  be  justified  in  filing  an  information  for 
the  misdemeanor  and  in  refusing  to  file  one  for  the  felony,  ii! 
the  latter  contingency,  however,  it  would  probably  be  the  duty 
of  the  district  attorney  to  file  with  the  clerk  of  the  court  a  state- 
ment of  his  reasons  for  such  refusal,  as  required  in  the  act  of 
1871,  sec.  6. 

A  remark  may  hero  bo  ma('     concerning  the  amount  of  proof 


ss 


^m 


STATE  V.  LEICilAM. 


J  25 


necessary  to  authorize  the  district  attoi-ney  to  file  an  information 
for  an  offense  other  than  tliat  charged  in  tlie  complaint.  We 
think  the  rule  of  the  statnte  by  which  committing  magistrates 
are  governed  (R.  S.,  eh.  176,  sec.  19),  should  be  applied.  That 
is  to  say,  the  testimony  should  show  that  the  offense  charged  in 
the  information  has  been  committed,  and  that  there  is  probable 
cause  to  believe  the  accused  guilty  tliereof. 

In  the  present  case,  the  testimony  on  the  examination  was 
taken  down  very  imperfectly ;  yet  we  think  it  shows  that  the 
offense  charged  in  the  information  was  committed,  and  that  there 
is  probable  cause  to  believe  the  defendant  guilty  thereof.  It 
follows  that  the  information  was  properly  filed. 

We  might  here  dismiss  the  exception  under  consideration,  but 
There  are  questions  of  practice  or  procedure  involved,  which 
ought  not  to  be  passed  over  without  remark. 

We  have  thus  far  considered  the  case  upon  the  hypothesis  that 
the  district  attorney  cannot  lawfully  file  an  information  for  a 
criminal  offense,  except  in  case  of  a  fugitive  from  justice,  unless 
the  accused  has  been  examined  for  some  criminal  offense,  and 
committed  or  held  to  bail  by  the  examining  magistrate ;  and  that 
the  examination  returned  with  the  record  in  the  present  case  is 
the  only  basis  for  the  information. 

Whenever  the  question  shall  be  fairly  presented  for  detei-mi- 
nation,  very  probably  it  will  be  held  that  the  district  attorney 
cannot  lawfully  file  an  ijjforination  for  a  criminal  offense  without 
a  preliminary  examination  or  a  waiver  thereof,  and  the  holding 
to  hail  or  commitment  of  the  accused,  exce])t  in  the  case  of  a 
fugitive  from  justice.  We  do  not  now  perceive  how  any  differ- 
ent rule  can  prevail  under  the  statute:  Laws  of  1871,  eh.  137, 
sec.  7  (Tay.  Stats.,  1930,  §  22).  Assuming  the  law  to  be  as  here 
indicated,  how  shall  the  fact  be  made  to  appear  that  there  has 
been  no  preliminary  examination?  In  what  manner  may  the 
defeiulant  proceed  to  avoid  an  unauthorized  information 
exhibited  against  him. 

,In  the  case  of  Peterson  v.  Tlie  State  (as  yet  unreported),  we 
had  occasion  to  consider  these  questions  to  some  extent,  and  our 
views  as  to  the  proper  procedure  in  such  cases  are  indicated  in 
the  following  extract  from  the  opinion  :  "  If  such  examination 
WHS  essential  in  this  case  before  the  information  could  properly 
be  filed  (a  point  we  do  not  here  decide),  the  fact  that  there  had 
been  such  an  examination  need  not  be  stated  in  the  information 


i.\ 


126 


AMERICAN  CRLAIINAL  REPORTS. 


or  shown  afRrinatively  bj  the  prosecution.  The  want  of  an 
exauiination  is  matter  in  defense  or  abatement,  to  be  established 
by  the  plaintiff  in  error." 

It  seems  to  ns  that  the  better  practice  in  such  cases  is  for  the 
defendant  to  plead  the  want  of  an  examination  in  abatement  of 
the  information,  before  pleading  to  the  merits.  The  district 
attorney  can  then  take  issue  on  the  plea,  and  the  fact  can  be 
determined  by  proofs.  The  burden  of  proving  his  plea  is  upon 
the  defendant ;  and  his  own  testimony  that  he  has  not  had  a  pre- 
liminary examination,  or  competent  proof  that,  having  been 
examined,  he  was  not  committed  or  held  to  bail,  will  be  sufficient 
prima  facie  to  prove  his  plea,  and  to  cast  upon  the  prosecution 
the  burden  of  showing  to  the  contrary.  We  do  not  say  that 
there  is  no  other  way  in  which  the  want  of  a  preliminary  exami- 
nation may  be  taken  advantage  of;  we  only  express  the  opinion 
that  the  practice  here  indicated  is  the  more  regular  and  orderly, 
and  best  accords  with  the  procedure  upon  indictments  at  common 
law  and  under  the  former  practice. 

In  this  case  the  defendant  did  not  prove  that  he  had  not  been 
subjected  to  a  preliminary  examination  and  held  to  bail  or  com- 
mitted for  the  precise  offense  charged  in  the  information.  In 
the  absence  of  such  proof,  all  essential  preliminary  proceedings 
must  be  presumed ;  and  such  presumption  is  not  rebutted  by  the 
mere  fact  that  the  accused  had  been  on  some  occasion  examined 
for  another  offense.  Hence,  if  the  law^  of  1875  had  never  been 
enacted,  we  should  still  be  unable  to  say  from  this  record  tliat 
the  defendant  had  not  had  a  preliminary  examination  for  the 
offense  charged  in  the  information,  and  had  not  been  committed 
or  held  to  bail  to  answer  therefor :     Peterson  v.  The  State,  supra. 

"We  have  said  more  of  the  exception  under  consideration  *^han 
was  absolutely  necessary  to  the  determination  of  the  questions 
involved  therein,  for  the  reason  that  the  legislation  based  upon 
the  amendment  to  the  constitution  adopted  in  1870  has  intro- 
duced many  new  features  in  criminal  procedure  in  this  state,  and 
we  felt  that  some  discussion  of  questions  which  have  been  argued 
in  this  court,  but  not  definitely  determined,  might  be  of  some 
service  to  the  bench  and  bar  of  the  state. 

II.  The  next  exception  to  be  considered  is  to  the  ruling  of 
the  court  at  the  commencement  of  the  trial,  refusing  to  require 
the  district  attoi-ney  to  elect  on  which  count  of  the  information 
he  would  proceed. 


STATE  i:  LEICIIAM. 


127 


The  court  had  ]>()\ver  to  require  the  district  attorney  to  make 
such  eloctiuii.  liut  tliis  is  a  matter  resting  in  the  discretion  of 
the  court,  and  a  refusal  to  compel  such  election  cannot  in  all 
eases  be  assigned  as  error.  It  is  only  in  cases  where  such  refusal 
is  iiiauil'estly  an  improper  exercise  of  discretion,  that  the  ruling 
can  be  reviewed  in  the  appellate  or  supervisory  court.  It  is  said 
in  State  i\  Gii/nmer.22  Wis.,  441,  that  "the  court  will  only 
listen  to  the  recpiest  to  c<jmpel  the  ])rosecution  to  elect  in  felonies, 
when  thoy  can  see  that  the  charges  are  actually  distinct,  and  may 
coufouud  the  prisoner  or  distract  the  attention  of  the  jury."  To 
the  same  effect  is  the  case  of  Miller  v.  The  State,  25  Id.,  384. 
The  rule  of  these  cases  is  abundantl}'  sustained  by  the  authorities. 

We  are  quite  unable  to  perceive  how  the  refusal  by  the  court 
to  compel  the  district  attorney  to  elect  could  possibly  confound 
the  defendant  in  his  defense,  or  distract  the  attention  of  the  jury. 
Tlie  testimony  was  all  directed  to  the  point  that  the  defendant 
iiad  fraudulently  converted  to  his  own  use  the  machines  men- 
tioned in  the  first  count  of  the  information,  and  all  of  it  would 
have  been  admissible  had  the  information  contained  no  other 
count.  Both  counts  were  evidently  predicated  upon  the  same 
fraudulent  acts  of  the  defendant,  to  wit :  the  conversion  of  cer- 
tain property  of  the  prosecutors,  or  of  the  proceeds  of  such  prop- 
erty. It  might  have  been  uncertain  whether  the  actual  conver- 
sion was  the  property  or  proceeds,  and  it  was  entirely  competent 
for  the  district  attorney  to  insert  in  the  information  a  count  for 
eacli,  to  meet  the  possible  contingencies  of  the  proofs :  Jfiller 
I'.  I'/ie  State,  Kiipra.  It  seems  to  us  imjjossible  that  the  defend- 
ant could  have  been  prejudiced  by  the  refusal  of  the  court  to 
compel  an  election.     Hence  the  exception  is  not  well  taken. 

III.  Several  exceptions  were  taken  to  the  charge  given  to  the 
jury  by  the  learned  circuit  judge,  and  to  his  refusal  to  give  cer- 
tain instructions  proposed  on  behalf  of  the  defendant.  It  is 
essential  to  a  correct  understanding  of  these  exceptions,  that  a 
hi'ief  statement  be  made  of  the  evidence  given  and  the  facts 
proved  on  the  trial. 

In  January,  1875,  a  contract  in  writing  was  entered  into  by 
and  between  the  firm  of  Van  Brunt,  P)arber  <^  Co.,  of  the  one 
part,  and  the  defendant  of  the  other  i)art,  by  which  the  firm 
appointed  the  defendant  its  agent  to  sell  its  seeders,  on  the  terms 
and  conditions,  and  under  the  restrictions  therein  specified.  The 
defendant  also  thereby  accepted  such  agency,  and  bound  himself 


! 


m 


i! 


;:jr 


1   i 


■I 


III 


'  -'I 


:,li 


m 


128 


AMERICAN  CRIMINAL  REPORTS. 


to  fulfill,  observe  and  keep  such  terms,  restrictions  and  eondi- 
tioiis.  Tliis  contract,  in  all  essential  particulars,  is  like  the  con- 
tract  considered  in  T/ie  Williams  Mmoerand  Reaper  Co.  v.  Ray- 
not;  38  Wis.,  119,  where  it  was  held  that  the  party  receiving  tlie 
property  under  it  was  merely  the  agent  or  bailee  of  the  other 
party  to  sell  it,  the  title  remaining  in  such  other  party,  and  the 
agent  was  held  liable  in  tort  for  a  conversion  of  the  property. 
(See  pp.  12S-9.) 

A  large  number  of  seeders  were  shipped  by  Van  Brunt,  Bar- 
ber &  Co.  to  the  defendant,  pursuant  to  the  contract,  some  of 
which  were  sold  by  the  defendant  and  accounted  for,  and  others 
were  returned  to  the  iirm.  One  Myers  had  become  surety  for 
defendant  on  a  note  which  had  been  sued  and  prosecuted  to 
judgment  and  execution  against  both,  and  the  property  of 
Myers  had  been  seized  on  the  execution.  The  defendant,  being 
pressed  to  pay  this  debt,  after  some  hesitation,  sold  to  Myan 
three  of  the  seeders  received  by  him  under  the  contract  with 
Yan  Brunt,  Barber  &  Co.,  for  the  purpose  of  getting  money 
fn-m  Myers  with  which  to  pay  such  execution.  IMyers  tlicre- 
upon  paid  him  $130  in  cash,  under  an  agreement  by  the  defend- 
ant to  pay  the  judgment  against  them  with  the  money,  which 
agreement  the  defendant  at  once  performed.  The  defendant 
stipulated  with  Myers  that  he  might  purchase  back  the  scodors 
by  repaying  the  $130,  and  tried  to  stipulate  (l)ut  without  success) 
that  Myers  should  not  remove  the  seeders.  Myers  took  and  held 
possession  of  the  seeders.  These  transactions  were  without  the 
consent  and  knoAvledge  of  Van  Brunt,  Iiarl)er  &  Co.,  and  tlie 
defendant  has  never  accounted  to  them  for  the  seeders  sold  to 
Myers.     These  are  the  seeders  described  in  the  information. 

The  foregoing  facts  are  proved  by  the  uncontrovertod  evi- 
dence, and  are  absolute  verities  in  the  case.  That  they  siiow  a 
fraudulent  conversion  by  the  defendant,  to  his  own  use,  of  the 
property  described  in  the  information,  cannot  be  doubted.  And 
it  is  equally  clear  that  such  property  came  to  the  possession  of 
the  defendant,  and  was  under  his  care,  by  virtue  of  his  employ- 
ment as  agent  of  the  owners  for  the  sale  thereof.  Moreover, 
there  is  no  room  in  the  case  for  the  theory  that  the  defendant 
supposed  he  had  the  right,  under  his  contract  with  the  owners, 
to  convert  the  property  to  his  own  use,  and  he  cannot  urge,  in 
justification  of  his  conduct,  that  he  constnied  the  contract  as 
giving  him  the  right,  and  hence  converted  the  property  in  good 


STATE  V.  LEICHAM. 


129 


faitli.  He  knew  that  he  held  the  property  as  agent  for  tlie 
owners,  by  virtnre  of  his  employment  as  snch,  and  he  converted 
it  to  his  own  use  without  the  consent  of  the  owners,  and,  as  he 
well  knew,  in  violation  of  his  duty. 

There  is  nothing  in  the  evidence  that  tends  to  show  that  he 
acted  innocently ;  nothing  which  enables  us  to  say  that  perhaps 
he  (lid  not  understand  the  nature  of  his  acts,  and  may  not  have 
intended  to  commit  a  crime.  We  are  compelled  to  believe  that 
he  converted  the  property  to  his  own  use  with  full  knowledge  of 
the  quality  of  the  act  and  the  possible  consequences. 

Neither  does  the  fact  (if  it  be  a  fact)  that  the  defendant 
l)elioved,  when  he  converted  the  seeders  to  his  own  use,  that  he 

mid  be  able  to  pay  the  owners  for  them  when  required  to 
)nnt  for  them,  and  intended  to  do  so,  remove  from  the  act  of 
,  ..iiversion  its  fraudulent  and  criminal  character.  The  fraud  and 
crime  inhere  in  the  act,  and  were  not  eliminated  therefrom  by 
any  mere  mental  process,  however  amiable  or  virtuous  it  may 
have  been. 

The  instructions  given  and  refused  must,  of  course,  be  consid- 
ered in  the  light  of  the  evidence  and  of  the  undisputed  facts  in 
the  case ;  and,  this  considered,  we  fail  to  find  any  error  in  that 
behalf  of  which  the  defendant  can  justly  complain.  Indeed,  we 
think  the  jury  were,  in  some  particulars,  instructed  more  favor- 
ably to  him  than  the  facts  of  the  case  warranted. 

The  proposed  instructions  refused,  and  the  instructions  given, 
upon  which  the  exceptions  are  predicated,  are  as  follows : 

The  court  refused  to  charge,  "  If  you  find  that  the  defend- 
ant so  construed  the  written  contract  that  he  honestly  supposed 
that  he  had  the  right  to  sell  the  machines  and  use  the  proceeds 
tlioreof,  and  afterwards  account  to  the  company,  and  that  in  the 
transaction  in  question  he  acted  under  that  impression  and  in 
good  faith,  you  should  not  find  him  guilty. 

"If  you  find,  from  the  evidence,  that  at  the  time  of  making 
the  bill  of  sale  the  defendant  intended  and  expected  to  be  able  to 
pay  for  the  same  to  the  company  when  liis  general  settlement 
Fhonld  be  made,  and  that  he  acted  in  good  faith  and  with  no 
criminal  intent,  you  should  not  find  him  guilty." 

Tiie  following  instructions  were  given : 

"  It  is  not  enough  to  constitute  the  offense  charged,  that  the 
defendant  was  the  agent  of  the  company,  and  that  he  converted 
the  property  to  his  own  use ;  but  the  evidence  must  show  that 
Voi,.  II.— 9 


I' 


Y'.m'    111 
1  '>';■ 


•i 


!i 


■U.i 


130 


AMERICAN  CRIMINAL  REPORTS. 


i 


the  property  was  iTaudiilontly  converted  to  his  own  use,  or  con- 
verted with  the  intent  to  embezzle. 

"If  you  entertain  any  reasonable  doubt  as  to  whether  the 
defendant  intended  to  defraud  the  company,  he  is  entitled  to  the 
benefit  of  the  doubt. 

'*  Under  the  written  contract,  which  has  been  read  in  evidence, 
and  which  it  is  the  duty  of  the  judge  to  construe,  the  defendant 
was,  at  the  time  of  the  alleged  embezzlement,  the  agent  of  Van 
Brunt,  Barber  &  Co.,  for  the  sale  of  machines  mentioned  in  the 
contract,  aud  for  receiving  and  passing  over  the  consideration, 
whether  in  notes  or  money,  to  the  said  company. 

"If  at  that  time,  or  before  it,  he  had  received  machines  under 
the  contract  and  held  them  for  sale,  he  was  bound  by  his  contract 
to  soil  them  according  to  the  terms  of  such  contract,  for  money 
or  notes,  which  were  the  proi)erty  of  said  cuni])any. 

"It  is  for  you  to  find  whether  or  not  he  had  received  and  had 
on  hand,  at  the  time  of  the  alleged  embezzlement,  the  machines 
in  question.  If  you  find  he  had  not,  and  should  find  that  ho 
sold  any  of  thein  for  the  purpose  of  paying  an  indebtedness  of 
his  own,  or  pledged  or  turned  them  out  as  security  for  the  pur- 
pose of  raising  money  to  pay  his  own  indebtedness,  without  the 
consent  of  his  principals,  it  was  an  unaxithorized  and  fraudulent 
use  of  them,  or  an  embezzlement  and  fraudulent  conversion  of 
such  as  were  so  used  to  his  own  use.  And  if  you  find  that  he 
did  so  while  the  property  was  in  his  possession,  lie  is  guilty  as 
charged  in  the  first  count  of  the  information. 

"It  would  not  relieve  him  from  guilt  if  he  intended  and 
expected,  at  the  time  of  doing  so,  to  pay  his  principal  for  thoni 
with  other  money  or  property,  or  to  repurchase  or  redeem  vlioni 
of  the  party  to  whom  they  were  sold  or  mortgaged,  or  to  repay 
the  money  to  the  party  to  whom  they  were  turned  out  or  ])Iedgud 
as  security." 

It  is  apparent,  from  an  examination  of  these  instructions,  that 
the  rulings  of  the  court,  considered  with  reference  to  the  facts  in 
the  case,  are  in  harmony  with  the  views  above  expressed,  and 
that  the  exceptions  to  such  rulings  cannot  be  sustained. 

IV.     The  court  refused  the  following  instruction  : 

"The  evidence  shows  thf^  the  defendant  was  not  such  an 
ageut  of  the  comi)aiiy  as  is  intended  by  the  statute  under  which 
the  charge  is  made.  I  thei-efore  charge  you  that  thoro  is  no  evi- 
dence aufficient  to  convict  the  defeTuhuit." 


coil- 


is 


STATE  V.  LEICHAM. 


131 


The  instruction  was  evidently  drawn  with  referencje  to  the 
decisions  of  the  Supreme  Court  of  Massachusetts,  in  Common- 
wealth V.  Steams,  2  Met.,  Si3,  and  in  Com.  v.  Libbey,  11  Id., 
64,  upon  a  statute  liko  ours.  In  the  first  of  these  cases  it  was 
held  that  "  an  auctioneer  who  receives  money  on  tlie  sale  of  his 
employer's  goods,  and  does  not  pay  it  over,  but  misapplies  it,  is 
not  siicli  an  agent  or  servant  as  is  intended  by  the  statute." 

The  ground  of  this  decision  is,  that  the  money  so  received  is 
the  money  of  the  auctioneer,  and  not  of  the  employer;  and  the 
court  hiy  stress  upon  the  fact  tliat  tlie  auctioneer  was  not  charged 
with  any  misappropriation  or  unlawful  conversion  of  the  specific 
property  intrusted  to  liim.  In  Com.  v.  Lihheij  the  indictment 
was  against  a  person  em])loyed  to  collect  bills  for  the  proprietors 
of  a  newspaper,  charging  that  the  accused  embezzled  and  fraudu- 
lently converted-  to  his  own  use  the  moneys  collected  by  him  for 
8ueh  pro])rietors  by  virtue  of  his  enijiloyment.  The  court  drew 
a  distinction  between  a  special  agency,  where  the  right  of  prop- 
erty and  t)ie  possession  remain  in  the  principals,  and  the  cases  of 
eonunission  meivhants,  auctioneers  and  attorneys  authorized  to 
collect  denian<ls  for  others,  holding  that  an  indictment  would  lie 
for  a  frauilulent  conversion  of  the  property  in  the  former  case, 
but  not  in  the  latter  cases  for  a  fraudulent  conversion  of  the 
ino.ieys  collected. 

In  the  i)resent  case  the  agency  was  special,  and,  as  above 
stateil,  the  right  of  property  contimied  in  the  principals.  Hence, 
within  the  rule  of  the  ^[iissachnsetts  cases,  a  fraudulent  conver- 
sion of  the  pro])crty  by  the  agent  is  a  criminal  oft'ense  under  the 
statute.  We  think  the  ])roposcd  instruction  was  properly 
jefused. 

\.  It  was  argued  at  the  bar  by  the  learned  counsel  for  the 
defendant,  that  the  law  of  18755,  ch.  8r»,  supersedes,  in  a  case  like 
this,  the  statute  under  wliidi  the  information  was  drawn  (K.  S., 
ch.  105,  sec.  20),  aiul  reduces  the  offense  charged  from  a  felony 
to  a  mere  misdemeanor,  and  hence,  that  the  greatest  punishment 
that  can  be  inflicted  is  that  prescribed  in  the  act  of  1S73. 

It  is  manifest  that  the  exceptions  do  not  and  cannot  raise  this 
(juestioii,  for  the  circuit  court  will  give  judgment  as  the  law 
rc(juires,  whetluM'  it  will  be  for  the  less  or  the  greater  penalty, 
and  wo  can  only  determiiu)  the  (piestion  when  calh'd  upon  to 
review  the  judgment. 

It  is  bt'liuved  that  the  foregoing  olis.'rvations  dispose  of  all  the 


I 
t 


132 


AMERICAN  CRIMINAL  REPORTS. 


exceptions;  and  it  results  therefrom  that  the  exceptions  must 
be  overruled,  and  the  cause  remanded  for  further  proceedings 
according  to  law. 

By  the  courx.    So  ordered. 

Note. — No  person  can  rightfully  be  put  upon  his  trial  for  a  felony  until  a 
prima  facie  case  Juis  been  made  against  him  by  legal  evidence,  whether  the  pre- 
liminary investigation  is  by  a  committing  laagistrate  or  a  grand  jury.  And 
the  court  before  which  the  trial  is  to  take  place  is  not  bound  by  the  prelimi- 
nary adjudication  of  the  magistrate  or  grand  jury,  but  has  not  only  the  right 
but  the  duty,  in  a  proper  case,  where  an  objection  is  seasonably  made,  to 
determine  whether  a  proper  foundation  has  been  laid  for  an  information  or  an 
indictment,  by  sufficient  legal  eviu^nce  adduced  on  the  preliminary  investi- 
gation. Every  court  h'ls  control  over  its  own  proceedings,  and  is  bound  to 
Bee  that  its  authority  is  not  used  for  the  purpose  of  oppression,  or  its  time 
consumed  by  frivolous  and  fruitless  inquiries.  The  authorities  cited  lien- 
after  fully  bear  out  these  views.  In  the  case  of  indictment  it  is  often  impos- 
sible to  show  on  what  evidence  an  indictment  was  found,  since  the  alHdavits 
of  the  grand  jurors  are  inadmissible  for  that  purpose.  But  in  states  where 
criminal  proceedings  are  by  information  filed  by  a  public  prosecutor  on  tlie 
return  of  a  committing  magistrate,  who  returns  the  evidence  on  which  the  com- 
mitment was  based  to  the  trial  court,  no  such  difficulty  can  arise. 

In  People  v.  Smith,  23  Mich.,  497,  it  is  held  that  the  information  should  have 
been  quashed  on  the  motion  of  the  defendant,  the  depositions  returned  by  the 
committing  magistrate  not  having  been  signed  by  the  witnesses,  tlie  court 
saying  tliat,  not  having  been  signed,  "tliey  stood  without  legal  autlieiiticii- 
tion,  and,  an  a  bam  for  further  proceeding:^,  were  mere  hearsay."  This  case  is 
followed  by  Turner  v.  People,  3;j  Mich.,  SOU. 

In  Spnrroibcrger  v.  State,  53  Ala.,  480,  it  Is  held  that  a  plea  in  abatement  to 
an  indictment,  that  there  was  no  legal  evidence  adduced  before  the  grand 
jury,  is  good. 

In  People  V.  Re.'ttenblatt,  1  Abb.  (N.  Y.),  Pr.,  2«8,  it  is  held  that  "an  indict- 
ment should  be  quashed  when  it  clearly  appears  by  affidavit  that  it  was  found 
by  tlie  grand  jury,  without  adequate  evidei!""  to  support  it,"  See,  also, 
U.  S.  r.  Shepherd,  1  Abb.  (N.  Y.),  Pr.  (N.  S.),  4;tl. 

In  State  v.  Froineth,  10  Minn.,  200,  an  indictment  was  quashed  because  It 
was  found  on  the  evidence  which  the  defendant  himself  had  been  compelled 
to  give  before  the  grand  jury. 

In  (/'.  .S'.  v.  Coolidge,  2  Gall.,  iJ03,  on  a  motion  to  quash  an  indictment  beeaiisu 
found  by  the  grand  jury  on  the  statement  of  a  witness  who  was  not  sworn, 
Story,  .1.,  ruled  that  the  indictment  must  be  quaslied.  lie  said,  "Every  Indicl 
ment  Is  sul)ject  to  the  control  of  the  court,  and  this  Indictment,  having  been 
found  irregularly,  and  upon  the  mere  statement  of  a  witness  without  oath, 
whicli  was  not  evidence,  a  camtur  must  be  entered." 

And  in  AMurn  v.  State,  15  Geo,,  240,  an  Indictment  was  quashed  because 
the  witnesses  before  the  grand  jury  wi-re  not  properly  sworn,  the  court  say- 
ing that  the  presentment  and  indictment  were  "  founded  on  what  was  not 
evidence— in  other  words,  were  without  foundation.  They  were,  therefore, 
void."  And  this  doclriue  is  lu  accordance  with  the  English  pructice.  See 
6C.  &P..00. 


STATE  13.  RAINISAY. 


But  in  Sicirnrt  v.  State,  24  Ind.,  143,  on  a  plcii  in  nbatpment  to  an  indictment 
•which  set  up  that  one  of  tho  grand  jurors  never  lieard  tiie  evidence  on  which 
tlie  indictment  was  founded,  the  court  held  tlie  plea  properly  overruled,  on 
tilt' ground  that  it  was  "not  competent  to  inquire  into  the  amount  of  evi- 
di'n(e*on  which  the  grand  jury  acted." 

And  in  Com.  v.  Wooih,  10  Gray  (Mass.),  477,  on  a  motion  to  quasli  in  indict- 
ment, it  was  hfld  that  a  grand  jury,  without  examining  witnesses  anew,  may 
tiiid  iin  indictment  as  a  substitute  for  another  indictment  found  by  them  upon 
au  inv(!stigation  of  the  facts  at  a  previous  term. 

Ill  S:ute  V.  Cain,  1  Hawks.  (N.  C),  352,  an  indictment  was  quashed  because 
foniiil  liy  the  grand  jury  upon  tlie  testimony  of  some  of  their  own  body,  not 
gworu  in  court  as  witnesses. 


State  v.  Ramsay. 

(78  N.  C,  448.) 

DrsTURBiNO  A  nEMoions  conoueoation:    Evidence — Charge. 

On  fb"  trial  of  an  indictment  for  disturbing  a  religious  congregation,  it  was  in 
evidence  that  the  defendant,  either  just  before  or  shortly  after  the  begin- 
ning of  the  services,  rose  up  in  the  church  and  began  to  speak  on  matters 
comucted  with  his  expulsion  from  the  church,  which  had  occurred  a 
short  time  previously;  that  the  minister  directed  him  to  stop,  when  he 
deeliired  he  would  be  heard,  and  persisted  in  speaking  until  he  was 
remov(;d  from  the  house;  that  he  thereupon  re-entered  and  resumed  his 
speaking,  notwithstanding  repeated  remonstrances  from  the  minister,  and 
by  his  conduct  and  voice  so  interrupted  the  services  that  the  meeting  was 
broken  up;  IfiM,  that  upon  this  evidence  the  jury  were  warranted  in 
reluming  a  verdict  of  guilty. 

On  sueli  trial,  evidence  as  to  "before  what  body  the  defendant  was  tried" 
w;is  iimdmissible;  also  as  to  "how  members  of  that  church  were  tried 
mid  convicted;"  also  as  to  the  maiuier  of  defendant's  expulsion  and  its 
propriety;  also  as  to  whether  the  ottlcial  board  or  the  members  of  the 
eliurch  had,  under  its  rules,  authority  to  expel. 

Oil  such  trial  a  witness  inlroduced  by  the  stale  teslifled,  on  cross-examination, 
Ihiit  he  had  "  taken  the  defendant  to  task  for  sowing  the  seeds  of  discord 
niid  spn.'ading  false  views;"  Held,  to  be  inadmissible  to  further  inquire 
wliat  those  false  views  were. 

On  sueli  trial  it  was  admissible  for  the  state  to  ask  a  witness  "if  it  was  a  cus- 
liini  in  this  church  for  an  expelled  member  to  get  up  on  the  Sabbath  day, 
just  iK'fore  or  at  the  beginning  of  the  regular  service  and  make  known  his 
Srievanees  ? " 

It  Is  not  necessary  to  constitute  Ihe  offense  of  disturbing  a  religious  congrega- 
tion, tlial  Ihe  congregalion  should  be  actually  engaged  in  ails  of  religious 
worship  at  the  time  of  Ihe  disturbance;  it  is  siillielenl  II'  tliey  are  assem- 
bled for  Ihe  purpose  of  worship  and  arc  prevented  Ihercfrom  by  the  acts 
of  the  defendant. 


* 


I'  m 


'V 


JL 


-:[■ 


134 


AMERICAN  CRIMINAL  REPORTS. 


Where,  on  such  trial,  the  court  charged,  at  the  defendant's  request,  "  that 
the  act  of  disturbance  must  be  wanton,  intentional  and  contemptuous," 
but  added  "  that  the  acts  would  be  wanton  if  done  without  regard  to 
consequences — that  is,  for  some  purpose  of  his  own,  and  with  intent  to 
do  them,  whether  he  thereby  disturbed  the  congregation  or  not."  HeU, 
not  to  be  error;  State  v.  Jasper,  4  Dev.,  323;  State  v.  Swink,  4  Dev.  and 
Bat.,  358;  State  v.  FUher,  3  Ire.,  Ill;  State  «.  Linkhaw,  69  N.  C,  214, 
cited,  distinguished  and  approved. 

Indictment  for  disturbing  a  religious  congregation,  tried  at 
May  term,  1877,  of  Wake  criminal  court,  before  Strong,  J. 

The  case  is  sufficiently  stated  by  the  chief  justice  in  deliver- 
ing the  opinion  of  this  court.  Yerdict  of  guilty.  Judgment. 
Appeal  by  defendant. 

Mr.  A.  M.  Lewis,  who  prosecuted  in  the  court  below,  appeared 
with  the  attorney-general,  for  the  state. 

3fr.  T.  M.  Argo,  for  the  defendant. 

Smith,  C.  J.  The  defendant  is  charged  with  the  offense  of 
disturbing  a  religious  congregation  and  obstructing  public  wor- 
ship. 

It  was  in  evidence  that  a  religious  congregation,  under  the 
ministerial  charge  of  one  Edwin  Marcom,  was  accnBtomed  to 
assemble  for  divine  worship  at  a  place  known  as  Piney  Grove 
church ;  that  on  Sunday  the  13th  of  May,  18T6,  the  congregation 
began  to  assemble,  and  a  number,  estimated  by  witnesses  at  from 
ten  to  thirty,  were  in  the  church,  and  their  minister  in  his  place 
in  the  pulpit. 

Some  of  the  witnesses  testified  that  services  had  already  begun 
by  the  singing  of  a  hymn  ;  and  others,  that  the  congregation  had 
been  engaged  in  voluntary  singing  not  under  the  direction  of  the 
minister,  and  that  the  regular  hour  for  Sabbath  services  had  not 
arrived. 

The  defendant,  who  had  been  a  member  of  the  church,  and 
had  been,  about  two  weeks  before,  expelled  from  its  c«)ni- 
munion,  rose  up  in  the  church  and  began  to  speak  on  matters 
connected  wi:h  his  expulsion,  when  he  was  told  by  the  minister 
that  he  coulu  not  bo  permitted  to  do  so,  and  must  stop  ;  that  the 
defendant  declared  ho  would  bo  heard,  and  persisted  in  speaking 
to  those  present,  until  some  of  the  members  put  him  out  of  the 
house;  that  ho  re-entered  immediately  and  resumed  his  B]K'ak- 
ing,  in  disregard  of  repeated  commands  and  remonstrances  from 
the  minister,  and  by  his  disorderly  conduct  and  noise  so  intcr- 


^dtt 


"that 

10U8," 

rd  to 

mt  to 

EeM, 

and 

214, 


■d  at 


STATE  V.  KAMSAY. 


135 


rupted  the  exercises  that  the  meeting  was  broken  up,  and  those 
present  left  the  house  and  returned  home. 

Various  exceptions  were  taken  by  the  defendant  to  the  rulings 
of  the  court  in  admitting  and  rejecting  evidence,  only  so  much 
of  which  will  be  stated  as  is  necessary  to  the  exceptions  being 
properly  understood. 

Exception  1.  On  the  cross-examination  of  Edwin  Marcom,  a 
witness  for  the  state,  he  stat(?d  that  the  defendant  had  been  a 
member  of  his  church,  but  was  not  then  a  member,  having  been 
turned  out  about  two  weeks  before.  The  defendant's  counsel 
])roposed  further  to  inquire  of  the  witness,  before  what  body  the 
defendant  had  been  tried.  The  solicitor  objected,  and  the 
inquiry  was  not  permitted. 

Exception  2.  On  the  cross-examination  of  Edwin  Marcom,  a 
witness  for  the  state,  he  said  he  liad  taken  tlie  defendant  to  task 
for  sowing  the  seeds  of  discord  and  spreading  false  views.  The 
defendant's  counsel  asked  what  these  false  views  were.  The 
polijitor  objected  and  the  answer  was  disallowed. 

Exception  3.  The  defendant's  counsel  inquired  of  one  of 
his  own  witnesses  how  members  of  tliat  church  are  tried  and 
sentenced.  On  objection  of  the  solicitor  the  evidence  was 
excluded. 

Exception  If..  Defendant's  counsel  proposed  to  ask  of  his  own 
witnesses  about  a  conversation  between  Marcom  and  the  witness, 
in  reference  to  defendant's  expulsion  from  church  membership, 
Hiid  its  propriety.  On  objection  of  the  solicitor  the  evidence 
was  dec'lartid  inadmissible. 

Exctptio7iH  5  ami  6.  The  solicitor  asked  a  witness  if  it  was  a 
ciistoni  in  this  church  for  an  expelled  member  to  get  up  on  the 
Sabbath  day,  just  before  or  at  the  beginning  of  the  regular  ser- 
vice, and  uuiko  known  his  grievances.  This  question  was 
objected  to  by  defendant's  counsel,  but  allowed  to  be  put  and 
answered. 

Ed'oiption  7.  On  the  redirect  examination  of  defendant's  wit- 
ness, his  counsel  inquired  if  "the  official  board  of  the  members 
of  the  church  liad  under  its  rules  the  authority  to  expel."  The 
(piestion,  ol)jected  to  by  the  solicitor,  was  ruled  out. 

The  exception  to  the  evidence  elicited  in  answer  to  the  inquiry 
whether  any  usage  j)revailed  in  the  church  which  permits  an 
expelled   member,  on   the  Sabbath  day,  at  or  just  before  the 


;' 


i 


AMERICAN  CRIMINAL  REPORTS 


regular  services  coniinenced,  to  discuss  his  grievances  before  the 
congregation,  is  without  just  foundation. 

Tlie  evidence  tended  to  show  that  the  mterruption  was  with- 
out pretext  or  excuse,  and  that  the  time  and  place  selected  by 
the  defendant  to  make  known  his  complaints  were  not  only  in 
themselves  inopportune  and  improper,  but  found  no  countenance 
in  the  practices  of  the  church. 

"We  are  of  the  opinion  that  these  rulings  of  the  court  are  cor- 
rect and  that  the  exceptions  are  untenable.  The  evidence  offered 
by  the  defendant,  and  excluded,  was  altogether  irrelevant  and 
calculated  to  mislead.  Whether  the  defendant  was  rightfully  or 
wrongfully  turned  oxit  of  the  church — whether  because  of  irregu- 
larity in  the  proceedings,  he  was  still  a  member  of  the  body  or 
had  ceased  to  be — were  matters  foreign  to  the  issue  to  be  tried 
Whenever  a  religious  body  is  wantonly  and  intentionally  disturbed 
and  obstructed  in  its  worship  of  Alnnghty  God,  it  is  a  misde- 
meanor, by  whomsoever  done,  and  it  is  no  defense  that  the  party 
connnitting  the  act  is  a  member  of  the  congregation  disturbed. 

The  court  was  right  also  in  not  allowing  an  examiiuition  into 
and  a  review  of  the  church  judiciary,  to  ascertain  if  it  was  regu- 
lar and  right.  This  is  not  a  subject  of  inquiry  before  the  court, 
and  the  examination  was  j)roperly  arrested. 

We  propose  next  to  consider  the  matters  of  exception  to  tlic 
instructions  given  to  the  jury,  as  to  what  acts  constitute  the 
offense  charged  against  the  prisoner. 

The  court  charged  the  jury,  that  if  the  congregation  were 
assembled  for  religious  worship,  and  five  or  more  persons  liad 
met  and  were  engaged  in  acts  of  devotion  by  singing  and  pray- 
ing, shortly  before  the  usual  Siibbath  exercises  conducted  by  the 
minister  began,  and  the  defendant  did  the  acts  of  disorder  and 
interruption  deposed  to  by  the  witness,  for  the  purpose  of  dis- 
turbing the  congregation,  or  if  he  did  tiiose  acts  without  author- 
ity according  to  the  custom  of  the  congregation,  with  intent  to 
make  himself  heard,  regardless  of  the  disturbance  thereby  nnule; 
or  if  he  did  the  acts  menti(tned,  to  prevent  the  rcigular  religious 
service  for  which  the  congregation  wns  then  assemlding;  or  with- 
out the  sanction  of  usage  in  the  (diureh  with  intent  to  make  him- 
self heard,  though  he  might  thereby  disturb  tiie  congregation, 
and  if  ho  did  thereby  disturb  the  congregation,  he  would  bo 
guilty  of  the  offense  (diai'ged. 


m 


The  defei 
gtitute  the 
actually  eng 
this  instruct 
the  purpose 
disturbance. 
The  defer 
the  act  of 
temptuous." 
The  court 
ton  if  done 
pose  of  his  ( 
disturbed  tli 
There  car 
charge  were 
declared),  tl 
No  one  has 
others,  by  r 
go  boisteroi 
meeting  alt 
was  held ;  a 
obvious  and 
is  done  inte 
of  the  right 
of  rights  o 
enlightened 
And  we 
tlie  congrej 
id)out  to  b 
enguged,  ai 
up  tlie  niei 
those  whic 
tliey  begii 
reason  for 
briefly  to 
wliicli  our 
V.  ./asj)ci\ 
interrupt  i 
iiig  in  a 
actions  an< 


STATE  V.  RAMSAY. 


137 


Tlic  defendant's  counsel  asked  the  court  to  charge  that,  to  con- 
gtitute  the  offense,  the  congregation  must,  when  disturbed,  be 
actually  engaged  in  acts  of  religious  worship.  The  court  refused 
tliis  instruction,  but  told  the  jury  that  if  they  were  assembled  for 
tlie  purpose  of  worship  and  were  prevented  therefrom  by  the 
disturbance,  it  would  be  sufficient,  as  already  charged. 

The  defendant's  counsel  asked  this  furtlier  instruction  :  "  that 
tiie  act  of  disturbance  must  be  wanton,  intentional  and  con- 
temptuous." 

Tlie  court  so  charged,  but  added  "  that  the  acts  would  be  wan- 
ton if  done  without  regard  to  consequences,  that  is,  for  some  pur- 
pose of  his  own  and  with  intent  to  do  them,  whether  he  thereby 
disturbed  the  congregation  or  not." 

Tliere  can  be  no  serious  doubt,  if  the  facts  assumed  in  the 
charge  were  satisfactorily  proved  to  the  jury  (and  the  verdict  so 
declared),  that  the  defendant  has  been  guilty  of  a  misdemeanor. 
No  one  has  a  right  to  interfere  with  the  religious  devotion  of 
others,  by  making  known  his  own  grievances,  real  or  fancied,  in 
so  boisterous  a  manner  as  to  disturb  and  finally  break  up  the 
meeting  altogether,  and  thus  frustrate  the  object  for  which  it 
was  held ;  and  he  cannot  be  heard  to  say  he  did  not  intend  the 
obvious  and  necessary  consequences  of  his  conduct.  If  the  act 
is  done  intentionally  and  without  excuse,  it  is  a  wanton  invasion 
of  tlie  rights  and  privileges  guaranteed  in  §  20  of  the  declaration 
of  riijhts  of  tlie  constitution  of  the  state,  and  sustained  by  an 
enlightened  public  sentiment. 

And  we  think  the  protection  of  the  law  is  extended  as  well  to 
the  congregation  when  assembled  in  their  house  of  worship  and 
aliont  to  begin  the  regular  exercises,  as  when  it  is  actually  so 
enjfuged,  and  that  acts  which  prevent  those  exercises  and  break 
lip  the  meeting  so  that  they  cannot  bo  had  at  all,  ecpially  with 
those  which  disturb  the  religious  devotions  of  the  assembly  after 
they  begin,  are  prohibited  by  law.  AVe  cannot  see  any  just 
mison  for  distinguishing  between  the  two  cases.  AVe  refer 
hi'iefly  to  the  few  adjudicatitnis  on  the  subject  in  this  state  to 
which  our  attention  has  been  called  in  the  argument.  In  Sfaff 
V.  Jasper,  i  l)ev„  3'2;5,  the  court  declares  it  a  misdemeanor  to 
interrupt  and  disturb  n  religious  meetitig  "by  talking  and  laugh- 
iiij;'  in  a  loud  voice,"  and  ''making  ridiculous  and  indecent 
actions  and  grimaces,  during  the  performance  of  divine  service." 


■I  ,4 


'■■  i 


i'     \ 


■Til 


fl  .'f 


138 


AMERICAN  CRIMINAL  REPORTS. 


So  tlie  court  declares  it  to  be  an  indictable  offense  to  disturb  a 
congregation  engaged  in  public  worship,  though  it  be  not  in  a 
church,  chapel  or  meeting-house  especially  set  apart  for  the  pur- 
pose :  State  v.  Swink,  4  Dev.  and  Bat.,  358.  But  it  is  not  a 
misdemeanor  if  the  disturbance  takes  place  after  the  religious 
exercises  are  ovei^^nd  when  the  congregation  has  entered  upon 
secular  business :  State  v.  Fisher,  3  Ire.,  111.  So,  if  the  inter- 
ruption arises  from  loud  singing  by  one  who  is  honestly  partici- 
pating in  the  service  and  intends  no  disrespect,  it  is  not  punish- 
able by  indictment :    State  v.  Linkhaw,  G9  X.  C,  214. 

The  principle  which  underlies  the  adjudications  in  this  state  is 
obviously  the  right  of  every  religious  body  to  meet  and  engage 
in  the  worship  of  God,  in  the  language  of  our  constitution. 
"  according  to  the  dictates  of  their  own  consciences,"  and  to  be 
protected  by  law  in  the  enjoyment  of  that  right.  It  can  make 
little  difference  whether  the  liberty  of  public  worship  is  denied 
by  conduct  which  breaks  up  and  disperses  a  body,  met  for  reli- 
gious purposes  and  just  about  to  enter  upon  its  duties,  or  the  con- 
gregation is  interrupted  only  during  its  devotions,  and  not 
wholly  prevented  from  performing  them. 

It  is  not  open  to  dispute  whether  the  acts  of  the  defendant 
were  a  disturbance  in  the  sense  that  subjects  him  to  a  criminal 
prosecution,  and  that  the  jury  were  warranted  in  so  finding, 
when  they  had  the  admitted  effect  of  breaking  up  the  congrega- 
tion and  frustrating  altogether  the  purposes  for  which  it  had 
convened. 

There  is  no  error.     Let  this  be  certified. 

Peu  cukiam.  .  Judgment  affirmed. 


Shaklky  v.  State. 

(M  Ind.,  168.) 
FonoEiiY  :     Vmiance, 

The  indictment  wna  for  forglnji  a  promissory  nolo  wlilch,  as  set  forth  in  the 
indictment,  contained  tliesc  words:  "Tlic  drawers  imd  indorsera  severnllT 
wiiive  presentment  for  payment,  protest,  and  notice  ofproUxt"  etc.  Tlie 
note  olTcred  in  evidence  did  not  contain  tlio  words  "  and  notice  of  pro- 
test." Ikld  a  fatal  variance,  and  that  the  note  was  not  admisslljlc  iu 
evidence. 


SHARLEY  V.  STATE. 


139 


Perkins,  J.  Indictment  for  forgery,  consisting  of  two  counts. 
The  first  is  as  follows,  omitting  the  title  of  the  cause,  etc. : 
"  The  grand  jurors  for  the  county  of  DeKalb,  in  the  state  of 
Indiana,  upon  their  oaths  present  that  David  Sharley,  on  the 
29th  day  of  August,  in  the  year  eighteen  hundred  and  seventy- 
eix,  at  said  county,  unlawfully,  feloniously  and  falsely  did  forge 
and  counterfeit  a  certain  promissory  note  for  the  payment  of 
money,  which  said  forged  and  counterfeit  note  is  as  follows,  to 
wit:  . 

"1200.00  Watekloo,  Indiana,  AugU8t  29th,  1876. 

"  Thirty  days  after  date,  we,  or  either  of  us,  promise  to  pay  to 
the  order  of  the  DeKalb  Bank,  two  hundred  dollars,  with  inter- 
est at  ten  per  cent  per  annum  after  maturity,  the  interest  until 
maturity  at  that  rate  having  been  paid  in  advance,  and  ten  per 
cent  attorney's  fee,  negotiable  and  payable  at  the  DeKalb  Bank, 
Waterloo,  Indiana,  value  received,  without  any  relief  whatever 
from  valuation  or  appraisement  laws.  The  drawers  and  indors- 
ers  severally  waive  presentment  for  payment,  protest  and  notice 
of  protest  and  non-payment  of  this  note,  and  all  defenses  on  the 
ground  of  any  extension  of  time  of  its  payment,  that  may  be 
given  by  the  holder  or  holders  to  them  or  either  of  them. 

"Duo No. JOHN  SIIIRREY. 

JOHN  R.  WALKER. 

with  intent  to  defraud  James  I.  Best  and  Charles  A.  O.  McClel- 
lan,  who  were  doing  business  under  the  firm  name  of  DeKalb 
Bank,  contrary  to  the  form  of  the  statute  in  such  cases  made  and 
provided,  and  against  the  peace  and  dignity  of  the  state  of 
Indiana."  There  was  a  second  count  for  uttering  and  publishing 
as  true  a  certain  other  false,  forged,  etc.,  note,  a  copy  of  which  is 
set  forth,  and  which  is  literally  like  that  on  which  the  first  count 
is  predicated. 

A  motion  to  quash  the  indictment  was  overruled,  and  excep- 
tion noted.  The  defendant  then  ])leaded  the  general  denial ;  a 
triiil  followed ;  verdict  against  the  defendant,  fixing  as  his  punish- 
ment a  fine  of  twenty  five  dollars  and  four  years'  imprisonment 
in  the  state  prison.  Motions  for  a  new  trial  and  in  arrest 
of  judgment  were  overruled,  and  judgment  entered  on  the 
verdict. 

On  the  trial,  the  state  offered  in  evidence  as  the  note  alleged 


m 


» 


id 


140 


AMERICAN  CRIMINAL  REPORTS. 


and  set  forth  by  copy  in  both  counts  of  the  indictment  to  be  the 
forged  note,  a  note  of  which  the  following  is  a  copy : 

"$200.00  Waterloo,  Indiana,  August  39th,  1876. 

"  Thirty  days  after  date,  we,  or  either  of  us,  promise  to  pay  to 
the  order  of  the  DeKalb  Bank,  two  hundred  dollars,  with  inter- 
est at  ten  per  cent  per  annum  after  maturity,  the  interest  nntil 
maturity  at  that  rate  having  been  paid  in  advance,  and  ten  per 
cent  attorney's  fees,  negotiable  and  payable  at  the  DeKalb  Bank, 
"Waterloo,  Indiana,  value  received,  without  any  relief  whatever 
from  valuation  or  appraisement  laws.  The  drawers  and  inilors- 
ers  severally  waive  presentment  for  payment,  protest  and  non- 
payment of  this  note,  and  all  defenses  on  the  ground  of  any 
extension  of  the  time  of  its  payment,  that  may  be  given  by  the 
holder  or  holders  to  them  or  either  of  them. 


"  Due  September  30.       No.  648. 


JOHN  SIIIRREY. 
.JOHN  R.  WALKER." 


To  the  admission  of  the  note  in  evidence,  the  defendant 
objected  on  the  ground  tliat  it  was  incompetent,  irrelevant,  etc., 
but  the  court  overniled  the  objection  and  allowed  tlie  note  to  jjo 
in  evidence  to  the  jury.  Proper  exception  was  taken,  and 
alleged  errors  are  properly  assigned. 

The  court  did  not  err  in  overruling  the  motion  to  quash  the 
indictment,  and  its  imperfections,  if  it  had  any,  were  not  sucli  as 
were  fatal  under  sec.  61,  p.  386,  2  R.  S.  1876. 

Tlie  court  did  err  in  admitting  the  note  in  evidence,  because  of 
a  variance  between  it  and  the  note  set  out  in  the  indictment.  In 
this  case  it  was  necessary  that  tlie  instrument  offered  in  evidence 
should  correspond  with  that  stated  in  the  indictment.  A  more 
literal  variance,  however,  tliat  is,  where  the  omission  or  addition 
of  a  letter  would  not  alter  or  cluinge  a  word,  so  as  to  make  it 
another  word,  would  not  be  material:  1  Leach,  158;  1  Cow]»., 
22ft.  TIius,  the  van  mce  between  Messes,  and  Messrs.  would  not 
be  materia] :  2  Russ.  Crimes,  9th  ed.,  800  ;  Bicknell's  Crim.  Pr., 
366.     See  Pointer  v.  The  State,  15  Ind.,  433,  and  cases  cited. 

But  the  note  offered  in  evidence,  and  admitted  over  defend- 
ant's objection,  did  not  corresjiond  with  that  stated  in  the  indict- 
ment. There  was  more  than  a  literal  variance.  There  was  a 
verbal  variance  inconsistent  with  the  identity  of  the  two  instru- 
ments, in  this :  the  note  set  forth  in  the  indictment,  in  what  wn 


REMBERT  v.  STATE. 


141 


will  designate  its  waiver  clause,  reads  thus :  "  The  drawers  and 
indorsers  severally  waive  presentment  for  payment,  protest  and 
notice  of  protest  and  non-payment  of  this  note." 

This  clause  of  the  note  adinitted  in  evidence  reads  thus :  "  The 
drawers  and  indorsers  severally  waive  presentment  for  payment, 
protest  and  non-payment  of  this  note."  It  does  not  contain  the 
words  "and  notice  of  protest,"  which  are  contained  in  the  note 
stated  in  the  indictment.  For  this  error  the  judgment  must  be 
reversed. 

Reversed,  and  remanded  for  a  new  trial. 


a  •■ 


Eembert  v.  The  Statu. 

(53  Ala.,  4G7.) 

Forgery:    Indictment. 

An  indictment  charging  that  defendant  forged,  with  intent  to  defraud,  a 
written  instrument  as  follows:  "Due  8.25.  Askew  Brothers."  Mean- 
ing thereby  that  eight  dollars  and  twenty-five  cents  were  due  to  him  from 
Askew  Brothers,  which  was  a  partnership  composed  of  certain  specified 
individuals,  is  not  demurrable,  and  charges  forgery  in  the  second  degree, 
under  section  3702  of  the  Revised  Code. 

Appeal  from  circuit  court  of  Marengo. 

Tried  before  Hon.  Luther  R.  Smith. 

The  nppellant  was  tried  and  convicted  on  an  indictment  which 
charged  that  he,  "  with  intent  to  defraud,"  forged  an  instrument 
in  writing,  in  Avords  and  figures,  as  follows :  "  Due  8.25.  Askew 
Brothers;"  meaning  thereby  that  there  was  due  the  bearer  of 
said  instrument,  from  said  Askew  Brothers,  a  firm  composed  of 
Samuel  H.  Askew  and  Warren  S.  Askew,  the  sura  of  eight  dol- 
lars and  twentv-five  cents. 

The  defendant  demurred  to  the  indictment  on  the  grounds : 
"  Firtif,  That  the  instrument  in  writing,  alleged  to  be  forged,  is 
invalid  on  its  face,  creates  no  liability,  has  no  legal  tendency  to 
effect  a  fraud,  and  cannot  be  the  subject  of  forgery.  Second. 
That  the  instrument  alleged  to  be  forged  creates  no  legal  liability 
against  any  person  whatever,  and  is  not  a  bill,  note,  check,  corti- 
ticate,  or  other  evidence  of  debt,  and  that  the  moaning  of  the 
instrument  cannot  be  ascertained  from  the   words  and  figures 


nt: 


4 


|j| 


I 


142 


AMERICAN  CRIMINAL  REPORTS. 


' 


thereof."  The  court  ovei-ruled  the  demurrer,  and  its  ruling  is 
now  relied  on  as  error  fatal  tn  the  conviction. 

McCmi  (k  Bartlett.  The  instrument  is  not  a  writinf^  of  any 
validity  at  law.  It  creates  no  liability  upon  any  one,  and  cannot 
be  the  subject  of  a  forgery.  An  instniment  must  be  mVnl  on 
its  face  to  be  the  subject  of  forgery:  State  v.  Smith,  8  Yerger, 
151 ;  Jones's  Case,  Lord  Mansfield,  Sum.  Assizes,  1779 ;  State  v. 
Pierce,  8  Iowa,  231 ;  37  Texas,  591. 

-John  W.  A.  Sanford,  attorney-general,  with  whom  was  7?.  E. 
Clarke,  contra.  An  action  could  have  been  maintained  against 
Askew  Brothers  on  the  instrument  if  valid,  and  hence  it  is  the 
subject  of  forgery. 

The  indictment  is  good  if  any  state  of  facts  could  have  existed 
which  would  have  supported  it.  The  court,  looking  at  the 
instrument  without  the  aid  of  innuendo  in  the  indictment  and 
extrinsic  proof,  had  the  right  to  supply  the  word  dollars :  Mw- 
veil  V.  Handy,  17  Mo.,  406 ;  Northrojp  v.  Sanhorn,  22  Vt.,  433; 
Butler  V.  The  State,  22  Ala.,  43. 

Brickell,  C.  J.  There  are  numerous  definitions  of  the  offense 
of  forgery,  not,  perhaps,  substantiallj'  difiEering.  We  adopt,  as 
comprehensive  and  precise,  that  given  by  Mr.  Bishop :  "  For- 
gery is  the  false  making,  or  materially  altering,  with  intent  to 
defraud,  of  any  writing  which,  if  genuine,  might  apparently  be 
of  legal  efficacy,  or  the  foundation  of  a  legal  liability : "  2  Bisli. 
Orim.  Law,  g  495.  Mr.  Bishop  observes:  "The  p'mcipal  point 
for  consideration  is,  that  the  instrument  must  either  appear  n 
its  face  to  be,  or  be  in  fact,  one  which,  if  true,  would  j" 
some  legal  validity ;  or,  in  other  words,  must  be  legally  c 
of  effecting  a  fraud:''  lb.,  §  503.  If  the  writing  hiir  i^ 
capacity,  it  is  not  necessary  i,iie  fraud  should  have  been  coiisiiiu 
mated ;  the  offense  is  compiett  without  the  concurrence  of  dam- 
age or  injury  :    Jones  v.  State,  50  Ala.,  IGl. 

If  the  writing  is  void  on  its  face — illegal  in  its  very  fi-amc— it 
has  not  the  capacity  of  effecting  a  fraud,  and  is  not  the  subject 
of  forgery.  An  illustration  given  by  Mr.  East  is  Wall's  case, 
who  was  convicted  for  forging  and  altering  a  will  of  land,  pur- 
porting to  be  attested  by  oidy  two,  the  statute  of  wills  requiring 
the  attestation  of  three  witnesses.  The  judges  held  the  CDiivic- 
tion  wrong,  because  the  instrument  on  its  face  was  void,  incapable 
of  working  injury,  and  no  extrinsic  facts  could  impart  to  it  valid- 
ity :    3  EasCs  Crown  Law,  953.    So  in  People  v.  Galloway,  IT 


KEMBEKT  v.  STATE. 


143 


"Wend.,  540,  a  deed  of  lands  made  by  a  feme  coi'ert,  conveyin 
lier  own  real  estate,  the  deed  on  its  face  disclosing  the  facts,  and 
not  purporting  to  be  acknowledged  in  the  mode  prescribed  by 
the  statute  to  give  it  validity,  was  declared  not  the  subject  of 
forgery.  The  forgery  of  a  certificate  of  a  private  individual, 
that  a  slave  was  a  freeman,  not,  if  genuine,  being  evidence  of  the 
fact  certified,  imposing  no  duty  and  conferring  no  right,  was 
not  the  offense  denounced.  It  was  not  the  fabrication  of  an 
instnunent  which  could  affect  property :  State  v.  Smit/i,  8  Yer- 
ger,  150.  Such  an  instrument  might  have  been  the  ingredient 
of  a  cheat,  if  injury  had  ensued  from  it ;  but  being  of  no  legal 
i'fficacy,  either  apparent  or  which  could  arise  from  extrinsic 
facts,  it  was  not  sufficient  to  constitute  the  offense  of  forgery. 
The  false  making  a  bill  of  exchange,  void  by  statute,  will  not 
constitute  the  offense :  State  v.  Jones,  1  Bay,  205 ;  Mqfatfs 
Cane,  2  East's  Crown  Law,  954, 

This  general  rule,  that  if  the  instrument  is  void  on  its  face,  it 
is  not  tlie  subject  of  forgery,  must  be  taken  with  this  limitation ; 
when  the  instrument  does  not  appear  to  have  any  legal  validity, 
or  show  tliat  another  might  be  injured  by  it,  but  extrinsic  facts 
exist  by  wln'ch  the  holder  of  the  paper  might  be  enabled  to 
defraud  another,  then  the  offense  is  complete,  and  an  indictment 
averring  the  extrinsic  facts,  disclosing  its  capacity  to  deceive  and 
defraud,  will  be  supported :  State  v.  Bpiggs,  34  Yt.,  503.  The 
hot  tliat  the  paper  is  incomplete  or  imperfect  in  itself,  and  that 
w  the  knowledge  of  extrinsic  facts  it  does  not  appear  that 

it  lias  the  vicious  capacity,  only  renders  it  necessary  that  the 
indicti'  rit  should  aver  the  extrinsic  facts.  In  all  indictments 
for  fui;:;ery  at  common  law,  it  wt'.s  necessary  to  set  out  the 
instrument,  so  that  it  would  judicially  appear  to  the  court  that  it 
was  the  subject  of  forgery.  AVhen  the  instrument  is  complete, 
])erfect,  and  not  v  id  on  its  face,  and  when  it  is  sjioken  of  as 
void,  is  intended  illegal  in  its  very  frame,  or  innocuous  from  its 
cliaracter,  as  in  the  case  of  the  will  not  properly  attested,  or  the 
void  bill  of  exchange,  or  the  certificate  wortliless  as  evidence,  or 
the  deed  void  bcause  of  the  incapacity  of  the  grantor,  its  crim- 
inal character  wa^  disclosed  to  the  court.  AYhen  the  instrument 
is  imperfect,  incomplete,  and  its  real  meaning  and  terms  are  not 
intelligible  from  its  words  and  figures,  but  are  to  be  dei-ived 
from  extrinsic  facts,  and  its  capacity  to  injure  is  dependent  on 
6uch  facts,  then,  when  such  facts  are  averred,  and  the  instru- 


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144 


AMERICAN  CRIMINAL  REI  OHTS. 


.moiit,  its  meaning  and  pxirport,  made  intelligible  to  the  court,  it 
appears  judicially,  with  as  much  certainty   as  if   the  extrinsic 
facts  were  on  the  face  of  the  instrument,  and  that  set  out  h 
luBG  verba,  whether  it  has  the  vicious  capacity,  and  is  the  siilv 
ject  of  forgery:     Carhernj  v.  State,  11  Ohio  St.,  411 ;  Cimnnun- 
wealth  V.  Ray,  3  Gray,  448;  State  v.  Wheeler,  19  Minn.,  98 
(S.  C,  1  Green's  Crim.  K.,  541);  People  v.  Shall,  9  Cow.,  778; 
People  V.   Harrison,  8  liarb.,  5r)0 ;  Jieed  v.  State,  28  Tnd.,  3!)fi; 
Commonwealth  v.  Hinds',  101  Mass.,  211 ;  People  v.  Stearns,  21 
Wend.,  413.     In  this  last  case  the  principle  is  thus  stated  :  "  The 
indictment  must  show  the  forgerv  of  an  instrument  M'liidi,  on 
})eing  described,  appears  on  its  face  naturally  calculated  to  work 
some  effect  on  projierty ;  or,  if  it  be  not  complete  for  that  pur- 
pose, some  extrinsic  matter  miist  be  shown,  whereljy  the  court 
may  judicially  see  its  tendency.     As  an  instance  of  the  latter, 
suppose  a  man  has  the  custody  of  property,  which  he  agrees  to 
deliver  on  the  owner  sending  him  certain  words  under  his  hand, 
which  have  no  respect  to  property,  but  which  are  a  secret  .sign 
agreed  upon  between  them,  and  known  only  to  them.    Sin'li 
words  would  be  the  subject  of  forgery  within  the  statute ;  but 
not  being  significant,  and  it  not  being  conceivable  how  miscliiof 
would  ensue  from  their  use,  the  custody  of  the  goods  and  tlie 
agreement  in  the  words  must  be  shown  in  the  indictment.    I'ut 
suppose  a  letter  by  wliich  the  writer  requests  another  to  deliver 
"my  purse  of  gold,"  or  "my  package  of  bank-bills  to  A  IV' 
are  notthe  court  copable  of  seeing  at  once  how  the  forgery  of  .'^ucli 
an  instrument  may  work  a  fraud ;   and,  hence,  wouh'  nut  tlie 
iisual  allegation,  that  the  letter  was  counterfeited,  with  the  usual 
general  averment,  that  the  act  was  with  the  intent  to  defraud.  !)e 
suttieient?"     The  true  inrpiiry  is,  not  whether  the  instrmiient 
on  its  face  is  uncertain,  incomplete  and 'minleliigible,  but  is  it 
void  ;  if  genuine,  without  regard  to  extrinsic  facts,  would  it  bo 
invalid?     Tlie  uncertainty  and  incompleteness  nuiy  be  reiiiovd 
or  cured  by  reference  to  extrinsic  facts;  and  when   these  are 
averred  and  proved,  the  offense  is  puiiishablc  as  forgery. 

The  want  of  a  |)ayee,  and  the  want  of  an  tjxpression  in  words, 
or  in  figures,  accompanied  by  the  dollar  iruirk.  of  the  mm 
acknowledged  to  be  due,  are  the  defects  which  it  is  insisted  ren- 
der the  instrument  forged  void.  No  statute  declares  i^iu^li 
an  instrument  void,  and  it  certainly  offends  no  priiu'iplo 
of   tlie  common   law   for   the   maker  to   acknowledge   in  tliat 


am 


^ 

>* 


REMBERT  v.  STATE. 


145 


form  his  indebtedness  either  to  the  person  to  wliom  the  acknowl- 
edi'nient  is  delivered  or  to  some  other  person  who  mav  be 
expected  to  receive  it.  It  is  merely  uncertain  and  incomplete, 
and  that  it  has  the  vicions  capacity  to  defraud  depends  wholly 
on  extrinsic  facts.  If  these  are  averred,  and  disclose  this 
capacity,  the  indictment  is  snfHcient,  and  proof  of  the  facts 
will  autliorize  conviction.  Suppose  the  instrument  genuine, 
and  the  defendant  suing  the  makers.  Askew  Brothers,  on  it, 
averring  in  his  complaint  the  facts  averred  in  the  indictment, 
can  it  be  doubted  the  complaint  would  be  sufficient,  and  proof 
of  tlie  facts  entitle  him  to  a  recovery  ? 

Under  our  statute  the  instrument  would  import  a  consider- 
ation, and  its  execution  could  only  be  denied  by  a  sworn  plea  ; 
nor  could  the  ownership  of  the  plaintiff,  averred  in  the  com- 
plaint, be  put  in  issue  otherwise  than  by  a  sworn  plea.  The 
('()iirt  would,  by  intendment,  supply  the  dollar  mark  omitted  in 
expressing  the  sum  acknowledged  to  be  due,  rather  than  treat 
the  instrument  as  void  for  uncertainty :  Mum'll  v.  JIandi/,  17 
Mo.,  406 ;  Northrop  v.  Sanborn,  22  Vt.,  433 ;  Evans  v.  Steel,  2 
Ala,,  114;  W/iite  v.  Word,  22  Ala.,  442;  Jiutler  v.  State,  22 
Ala.,  43.  Courts  are  v^^ry  reluctant  to  ])ronounce  written  instru- 
ments void  for  mere  uncertainty.  When  words  are  omitted 
which,  from  the  vary  nature  of  the  instrument,  can  be  supplied 
with  certainty,  the  iegid  construction  and  operation  of  the  instru- 
ment is  the  sime  as  if  they  had  been  expressed.  No  one  can 
doubt,  if  Askew  Brothers  had  made  and  delivered  to  the 
tlefondant  a  genuine  instrument,  in  tlie  words  and  figures  of  the 
instrument,  that  the  courts,  vt  res  magis  valeat  quam  pereat, 
wouM  have  supplied  by  intendment  the  defects  which  it  is 
insisted  now  render  the  instrument  void. 

If,  on  its  face,  the  instrument  is  so  uncertain  that  it  does  not 
appear  to  be  the  sul»ject  ol'  forgei-y,  capable  of  working  injury, 
the  uvcriuonts  of  tlie  iiulictment  were  the  defect,  and  place  the 
instrument  just  where  it  wcuild  stand  if  these  facts  were  expressed 
on  its  face.  It  would  then  be  an  instrument  creating  a  pecun- 
iary domand,  and  its  false  making  forgery  in  the  second  degree, 
under  tlie  statute  :     li.  C,  §  3702. 

There  was  no  error  in  overruling  tlio  demurrer  to  the  indict- 
ment, and  the  judgment  must  be  affirmed. 


.^  ;'i  \ 


Vol,.  II.- 10 


vm 


"f^:W' 


146  AMERICAN  CRIMINAL  REPORTS. 

Geeooey  v.  State. 

(26  Ohio  St.,  510.) 

Forgery  :    Umlence. 

Wheric  a,  for  the  purpose  of  defrauding  H,  procured  C,  \va  innocent  party, 
to  sign  the  name  of  B  to  a  promissory  note,  by  falsely  representing  thiit 
C  was  authorized  by  B  so  to  do:    Held,  that  A  was  guilty  of  forgery. 

Motion  tor  the  allowaiu-e  of  a  writ  of  error  to  the  court  of 
common  pleas  of  Franklin  county. 

The  plaintiff  in  error  was  indicted  and  convicted,  under  section 
22  of  the  crimes  act,  as  amended  by  the  act  of  March  24,  1865 
(S.  &  S.,  264-),  for  uttering  and  publishing  as  true  and  genuine  a 
certain  false,  forged  and  counterfeit  promissory  note,  for  tlio 
payment  of  $300,  knowing  the  same  to  be  false,  forged  and 
counterfeited,  with  intent  to  defraud  a  certain  person  named  in 
the  indictment. 

The  note  purported  to  have  been  made  by  Daiiiel  lievis.  pay- 
able to  the  order  of  E.  W.  Phelps,  four  months  after  date,  or 
sooner,  if  made  out  of  the  s.'^.le  of  E.  W.  Phelps'  liarv(!st  and  saw 
sluirpener;  was  dateci  Jurit;  13,  1874,  and  indorsed  E.  W.  PhL'lj)s. 

On  the  trial,  evidence  was  given  tending  to  prove  that,  at  the 
date  of  the  note,  negotiations  were  pending  between  the  pliiintiff 
in  error  and  Daniel  Bevis,  who  resides  in  Prospect  town.'^iiii). 
Marion  county,  in  this  state,  which  resulted  in  Bevis  agreeing  to 
become  agent  for  the  sale  of  the  machine  above  named,  in  (icrtuiii 
townships  of  Marion  and  Union  counties,  to  complete  which  a 
contract  was  to  be  signed  in  duplicate  by  IJevis;  but,  as  lie  was 
tiuable  to  write  his  name,  his  daughter  llcibecca  Jaiu'  was  called 
and  directed  to  sign  his  name  to  the  contract  for  him ;  that  while 
Rebecca  Jane  was  at  the  table  to  sign  the  contract  for  her  father, 
Miles  Gregory,  a  brother  of  the  jjlaintiff  in  errf»r,  engaged  Air. 
fievis  in  the  inspection  of,  and  conversation  about,  some  pictures 
that  wore  hanging  on  the  wall  at  the  side  of  the  room  opposite 
that  at  which  the  writing  was  being  done,  and  after  slic  Ir.id 
t-igned  the  contract,  the  plaintiff  '  i  error  produced  the  note  .-^ct 
out  in  the  indictment  and  requcsu  i  her  to  sign  her  father's  iimiKi 
to  it,  saying  that  it  was  "a  little  agreement  between  her  i'atlicr 
and  himself;"  that  she  signed  it,  as  requested  by  the  plaintilf  in 
error,  without  further  in(piirv  -,  and  that  the  name  of  Daniel  IJevii 


was  signed 
knowledge 
After  th( 
among  the 
is  admitted 
Miss  Bevis, 
his  name, 
reasonable 
regard  to  tl 
tion  in  han 
of  the  pap( 
stood  by  hi 
a  promissoi 
that  I'evis 
called  on  t( 
and  agreed 
extent,  she 
name  to  th 
shall  furtlu 
consent  of 
cured  her  t 
evidence,  si 
was  the  act 
a  forgery,  i 
which  the  ] 
After  ve 
trial,  whicl 
after  sentei 
tions,  euibi 
which  was 
record. 

The  reas 
on  the  trnr 
Ponil  ( 
('lain\cd  th 
S.  ^'  S.,  2( 
promissory 
iiiiu'iided  1 
I'islid])  on 
M'etioii  !+■ 
<%ib\   I  V 


i 


tVi 


m 


GREGORY  V.  STATE. 


147 


was  signed  to  the  note  by  his  daughter  without  his  authority, 
knowledge  or  consent. 

After  the  close  of  the  argument,  the  court  charged  the  jury, 
among  the  other  instructions  given,  as  follows :  "  In  this  case  it 
is  admitted  that  the  name  of  Bevis  was  written  on  the  note  by 
iifiss  Bevis,  the  daughter  of  Bevis  (Bevis  not  being  able  to  write 
his  name,  as  he  testifies).  Now,  if  you  are  satisfied  beyond  a 
reasonable  doubt  that  Bevis  and  the  defendant  had  agreed  in 
regard  to  the  papers  Bevis  was  to  sign  to  complete  the  negotia- 
tion in  hand  between  them — that  a  promissory  note  was  not  one 
of  the  papers  Bevis  had  agreed  to  sign,  that  it  was  not  under- 
stood bv  him  that  he  was  to  sign,  and  he  did  not  intend  to  sign, 
a  promissory  note,  all  of  which  was  known  to  the  defendant ; 
that  IJevis  being  unable  to  write  his  name,  his  daughter  was 
called  on  to  act  for  him  in  signing  such  papers  as  he  understood 
and  agreed  he  would  sign — then,  and  in  sucli  case,  and  to  that 
extent,  she  was  the  agent  of  Bevis,  and  when  she  had  written  his 
name  to  those  papers  her  agency  for  him  ceased.  And  if  you 
shall  further  find  that  the  defendant,  without  the  knowledge  and 
consent  of  Bevis,  and  with  intent  to  defraud,  directed  and  pro- 
cured her  to  sign  the  name  of  Bevis  to  the  promissory  note  in 
evidence,  she  acted  in  that  respect  for  the  defendant.  In  law,  it 
was  the  act  of  the  defendant,  and  the  signature  so  procured  was 
a  forgery,  and  tlio  note  was  a  false  and  forged  instrument."  To 
which  the  plaintilf  in  error  excepted. 

After  verdict,  a  motion  was  made  to  set  it  aside  and  for  a  new 
trial,  which  was  overruled  by  the  court  and  ex('c])tod  to ;  and, 
after  sentence,  the  plaintiff  in  error  presented  his  bill  of  excep- 
tions, embodying  the  evidence,  rulings,  and  charge  of  the  court, 
which  was  signed  and  sealed  by  the  court  arid  made  ])art  of  the 
record.  , 

The  renstms  for  this  motion  appear  in  the  assignment  of  error 
on  the  tranw'ri|tt  of  the  record  on  file  in  this  case. 

Po)i(/  ((;  ./()/i,'\  and  (rt'o.  K.  NanJi,  for  plaintiff  in  error, 
cliiimed  tills  was  not  a  case  of  forgery  (S.  tfe  C,  409,  as  amended 
S,  iV  S.,  2<14),  but  the  procuring  the  signature  of  a  person  to  a 
promissory  note  by  a  false  pretense  or  pretenses  (S.  &  C,  420,  as 
amended  70  Oliio  L.,  .'JO).  8ee  3  Ohitty's  Crim.  Law,  100(5;  2 
P»isli(.|)  on  (Jrini.  Law,  sections  472,  47^5;  Wharton's  Crim.  Law, 
section  1441;  l*ahiturh  n.  StiUmtn,  \  >[ass.,  .')3 ;  Hill  v.  The 
^M>\  1  Vorg.,  7(i ;    Wnijhi  v.  People,  1   Broeso,  00 ;   fiey,  v. 


I' 


i  .,■ 


»f«pp 


148 


AMERICAN  CRIMINAL  REPORTS. 


Collins,  2  Moody  and  Bob.,  46 ;  Ih.,  54 ;  2  Bisliop  Criin.  Law, 
section  590 ;  Ih.,  section  584 ;  22  Penn.  St.,  394. 

That  Rebecca  did  not  act  as  the  agent  of  Gregory,  but  as  the 
agent  of  her  father,  Bevis,  and  was  induced  to  do  so  by  the  false 
representations  of  Gregory :  3  Chitty's  Crim.  Law,  lOOG ;  2 
Bishop  on  Crim.  Law,  sections  472,  473. 

John  Little,  attorney-general,  and  J.  II.  OutJiwaite,  prosecut- 
ing attorney,  for  the  state : 

Rebecca  was  not  the  agent  of  her  father  in  signing  the  note  (1 
Parsons  on  Contracts,  39,  40,  44),  but  the  agent  of  Gregory ;  and 
the  signing  was  the  signing  of  the  principal,  Gregory,  and  was 
forgery :  2  Car.  and  Kir.,  528 ;  Wharton's  Crim.  Law,  section 
1419  ;  2  Car.  and  Kir.,  201. 


Rex,  J.  N'umerous  errors  are  assigned  on  the  record ;  but  tlie 
errors  relied  on  by  counsel  for  the  plaintitf  in  error  in  argument 
are: 

"1.  That  the  court  erred  in  overruling  the  motion  of  the 
defendant  to  take  the  testimony  of  Daniel  and  Rebecca  Jane 
Bevis  from  the  jury. 

"  2.     That  the  court  erred  in  its  charge  to  the  jury. 

"  3.  That  the  verdict  was  against  the  weight  of  the  evidence 
in  the  case." 

The  lirst  and  second  propositions  present  for  decision  the  same 
question,  viz. :  Whether  the  procuring  by  the  plaintiff  in  error 
of  the  signature  of  Daniel  Bevis  to  the  promissory  note  set  out 
in  the  indictment,  in  the  manner  shown  by  the  evidence,  was  a 
forgery  by  him. 

The  reasons  urged  by  counsel  in  support  of  the  motion  of  tlio 
plaintiff  in  error  to  withdraw  the  testimony  of  Bevis  and  his 
daughter  from  the  jury  are :  That  as  the  daughter  was  acting  as 
the  agent  of  her  father  in  signing  his  name  to  the  contract,  she 
continued  to  act  in  the  same  capacity  in  signing  his  name  to  the 
promissory  note,  although  she  was  not  authorizeil  so  to  do  by  her 
father,  and  was  induced  thereto  by  the  false  pretenses  and  repre- 
sentations of  the  plaintiff  in  error  ;  and,  therefore,  that  the  plain- 
tiff, if  guilty  of  any  crime,  is  guilty  of  procuring,  by  false  pre- 
tenses, the  signature  of  Daniel  Bevis  to  the  promissory  note,  as 
the  maker  thereof,  which  is  also  made  punishable  by  statute ;  and 
the  same  reasons  are  urged  in  support  of  their  second  claim, 
"  that  the  court  erred  in  its  charge  to  the  jury." 


Foikiriiy:    / 


if! 


STATE  i\  COYLE. 


149 


We  do  not  think  that  these  reasons  arc  well  founded.  The 
acts  of  the  agent,  to  bnid  the  principal,  must  be  within  the  scope 
of  the  authority  given  to  the  agent,  and  if  the  signing  of  her 
father's  name  to  the  promissory  note  was  not  within  the  scope  of 
her  authority  as  his  agent,  the  false  pretenses  and  representations 
of  the  plaintiff  in  error  could  not  and  did  not  extend  her  author- 
ity as  such  agent. 

Ill  this  ease  the  agency  of  the  daughter  for  her  father 
extended  to  the  signing  of  his  name  to  the  contract  in  duplicate, 
and  iiu  further.  When,  therefore,  these  two  papers  were  signed, 
her  agency  for  her  father  ceased.  The  evidence  in  the  case  tends 
to  show  that  this  was  the  extent  of  her  authority  as  such  agent, 
and  that  she  was  induced  to  sign  the  promissory  note  by  the 
representations  of  the  plaintiff  in  error,  and  at  his  request,  believ- 
ing at  the  time  that  the  representations  were  true. 

In  signing  her  father's  name  to  the  promissory  note,  Rebecca 
was  therefore  the  innocent  agent  of  the  plaintiff  in  error,  and 
hence  her  act  was  the  act  of  the  plaintiff  in  error,  and  was  a 
forgery  :    Reginald  v.  Clifford,  2  Carr.  and  Kir.,  202. 

We  are,  therefore,  of  opinion  that  the  court  did  not  err  in 
overruling  the  motion  of  the  plaintiff  in  error  to  witlidraw  the 
testimony  of  the  witnesses  named  from  the  jury,  nor  in  its 
charge  to  the  jury. 

The  evidence  set  out  in  the  bill  of  exceptions,  in  our  opinion, 
fully  sustains  tlie  verdict. 

Motion  overrtded. 

Wi;i,cu,  0.  J.,  WiUTE,  GiLMOKE,  and  MoIlvaine,  JJ.,  con- 

oiirrcd. 


'  > 


1.  H- 

hi 


State  v.  Coyle. 
(41  Wis.,  207.) 
Fi)iiiiEnT:    Instrument  valid  on  its  face — Dank-eheek  for  "  eurrent  funds." 

The  fiilso  miikiiiij,  with  fraudulent  intent,  of  iin  instrument  in  tlio  f^eneriil 
form  of  a  lianii-eiiecit,  reiiueslin,!,'  the  Imnlc  to  "i)iiy  W.  T.  (),,  .Ir.,  or 
bearer,  ouo  fifty  dollars  in  current  fumls,"  constitutes  tlio  erinio  of  for- 
gery, un(i(!r  sett.  1,  eli,  1(J(I,  U.  S. 

A.t  tlifl  loft  upper  corner  of  tlui  cluiclt  were  llie  lljrures  |ir(().00.  Wliellier  tills 
would  iiutliorize  tlic  court  to  supply  the  words  " hundred  and"  l)etween 


(  :■ 


ill 


"^rPf- 


150 


AMERICAN  CRIMINAL  IlKrORTS. 


"one"  iiiul  "fifty"  in  the  body  of  the  instrament,  quere;  but  the  chwk 
at  least  calls  for  the  payment  of  fifty  dollars. 
The  check  is  apparently  a  valid  obligation;  would  create  a  liability  if  geu. 
uine,  and  therefore  had  a  tendency  to  defraud. 


.;'! 


Repokted  ffoiri  the  ciiviilt  court  for  Brown  county. 

This  was  a  criminal  information.  Its  character  and  the  pro- 
ceedin<;'s  had  at  the  trial  in  the  circuit  court  are  sufficiently 
described  in  the  following  paragraphs  from  the  opinion  of  Mr. 
Justice  Cole,  as  originally  prejjared : 

"The  information  charged  the  defendant  with  feloniuiisly 
uttering  and  publishing  as  true  a  false  and  forged  bill  of 
exchange  for  the  payment  of  money,  of  the  form  commonly 
known  as  a  bank-check,  with  intent  to  injure  and  defraud  Fred 
Hurlburt  and  Dell  Charles,  the  defendant,  knowing  the  bill  of 
exchange  to  be  false  and  forged.  The  information  set  out  the 
instrument  m  lime  verba,  as  follows : 


'Henhv  Stkono, 


k'KONO,        ) 

President.  ) 


$150.00. 


Oheen  Bay,  Wis., 
April  3,  187G. 


"  J*'i7'iit  National  Bank, 

"  Pay  W.  T.  Coyle,  Jr.,  or  beai'er,  one  fifty  dollars  in  current 
funds. '  No.  137. 


[Stamp.] 
"M.  D.  PEAK.  Cashier. 


"FRED  HURLBURT. 


"The  defendant  was  convicted,  and  a  motion  in  arrest  was 
made,  based  on  tlie  following  grounds  :  (1)  The  check  set  out 
in  the  information  is  not  a  bill  of  exchange,  not  being  for  tlie 
payment  of  money.  (2)  The  clieol  does  not  direct  the  payment 
of  any  particular  amount  of  mc;.ey,  nor  of  any  money  what- 
ever. (3)  The  check,  as  drawn,  could  not  deceive  any  one,  nor 
could  any  action  be  sustained  on  the  check  without  first  reform- 
ing it.  After  argument  of  counsel  the  circuit  court,  dee!iiin|i; 
the  questions  involved  so  important  and  doubtful  as  to  reijuire 
the  decision  of  this  court — the  defendant  desiring  and  consent- 
ing thereto — reported  the  ease  under  sec.  8,  ch.  180,  R.  S." 

The  cause  was  submitted  on  the  briefs  of  the  Attorney-Gfii- 
eral  and  «/.  G.  Neville,  district  attorney  of  Brown  county,  for  the 
state,  and  a  brief  of  Priest  c6  Carter,  for  the  defendant. 


I, 


STATE  0.  COYLE. 


151 


For  the  defense  it  was  insisted  that  the  instrument  offered  in 
evidence  was  not  finislied  and  complete  as  a  bill  of  exchange  (2 
\M\.  Cr.  L.,  §  562)  ;  that  it  was  not  payable  in  money,  but  was 
an  order  for  a  chattel,  not  naming  it ;  that  at  least  it  did  not  call 
fertile  payment  of  any  particular  sum  of  money,  and  no  action 
would  lie  upon  it,  nor  was  it  calculated  to  deceive.  Yurious 
exceptions  to  the  rulings  of  the  court,  in  regard  to  evidence, 
were  also  argued. 

For  the  state  it  was  argued,  among  other  things,  as  follows  : 
],  The  instrument  declared  on,  if  not  for  the  payment  of  money, 
was  for  [)ro[)erty,  eithei"  being  within  our  statute.  In  form  it 
resembled  a  check,  and  was  calculated  to  deceive.  The  word 
••  hundred"  will  be  suj)plied  in  the  body  of  the  instrument. 
The  figures  150.00,  preceded  by  the  dollar  mark,  in  the  margin, 
leinovcd  all  doubt,  and  showed  that  it  was  intended  to  be  for 
$150.  It  called  for  the  payment  of  a  particular  amount  of  money, 
to  wit :  one  hundred  and  fifty  dollars  ;  if  not  that,  then  fifty  dol- 
lars, rejecting  the  "  one  "  as  surplusage :  Arch.  Cr.  Pr.,  864, 
note.  The  check  was  valid,  and  an  action  could  be  sustained 
upon  it.  2.  Forgery  is  the  signing  by  one,  without  authority, 
and  fakely,  with  intent  to  defraud,  of  the  name  of  another  to  an 
instrument  which,  if  genuine,  might  apparently  be  of  legal  effi- 
cacy, or  the  foundation  of  a  lega'  liability  :  State  v.  Thompson, 
19  Iowa,  2i)!> ;  State  v.  /vinibafl,  50  Me.,  409 ;  Ames's  Case,  2 
A/.,  365;  (})m.  v.  Chaiiff/er,  Thatcher's  Cr.  Ciis.,  187;  Com.  v. 
Ai/er,'i\  Cush.,  150;  People  i\  Krummev,  4  Parker's  Cr.  Cas., 
:M7;  2  Pin.,  332;  2  IJay  (S.  C),  262;  8  Yerg.,  151.  Uttering 
a  forged  instrument  is  a  declaration  that  it  is  good,  with  an 
intention  to  |)ass  or  offer  to  pass  it :  Whart.  Cr.  L.,  1445.  It  is 
enough  if  it  be  offered  as  genuine,  or  declared  or  asserted  by 
word  or  action  to  be  good  :  People  v.  Cafoii,  25  Mich.,  358. 
The  essence  of  the  crime  consists  in  doing  the  act  with  the  uiten- 
lionto  itefraiul ;  and  it  is  not  necessary  that  any  person  shcmld 
have  been  in  fact  defrauded :  State  v.  Pierce,  8  Iowa,  231  ; 
People  V.  Caton,  supra.  And  it  makes  no  difference  that  from 
the  manner  of  executing  the  forgery,  or  from  the  ordinary  cau- 
tion of  the  person  who  was  to  be  defrauded,  the  instrument 
would  not  be  likely  to  impose  on  him  :  Com.  n.  Sf(>j)/ienso»,  11 
('ush.,  481.  Nor  is  it  necessary  to  show  an  intent  to  defraud 
iniy  particular  person :  2  Arch.  Cr.  Pr.,  842,  not(.' ;  Olier  Case, 
/'A,  805,  note;  Dunn  Case,  Id.,  831.  and  note.     Tiie  law,  how- 


;^  r 


I'Mf^ 


152 


AMERICAN  CRIMINAL  REPORTS. 


ever,  presumes  an  intent  to  defraud  the  person  who  would  have 
to  pay  the  instrument :  2  Arch.  Cr.  Pr.,  844  ;  Com.  v.  /Stephen- 
son, supra.  Uttering  a  forged  order  under  a  false  representa- 
tion is  evidence  of  the  scienter :  Sheppards  Case,  Leach's  Crown 
Cas.,  265.  3.  National  bank-notes  are  money:  U.  S.  R.  S., 
§§  5172,  5182-3 ;  Story  on  Bills,  53 ;  23  Wend.,  372.  As  to 
current  funds,  see  8  Barb.,  561. 

Cole,  J.  A  number  of  exceptions  were  taken  during  the  trial 
to  the  rulings  of  the  court  admitting  or  excluding  evidence,  and 
these  exceptions  have  been  argued  by  counsel  on  both  sides. 
We  suppose,  however,  thit  our  consideration  must  be  confined 
to  the  questions  involved  in  the  motion  in  arrest  of  judgment,  as 
those  are  the  only  ones  the  circuit  court  lias  reported  for  our 
decision.  And  those  questions,  it  will  be  seen,  relate  principally 
to  the  sufficiency  of  the  information.  The  information  is  framed 
upon  sec.  1,  ch.  166,  R.  S.  By  that  section,  the  false  making, 
alteration,  forging,  or  counterfeiting  of  any  bill  of  exchange,  or 
order  for  money  or  other  property,  with  a  fraudulent  intent, 
constitutes  forgery. 

The  instrument  set  out  in  the  information,  on  its  face,  is  an 
order  directed  to  a  bank  to  pay  the  bearer  a  sum  of  money  in 
current  funds.  This  ii.>  the  plain,  natural  meaning  of  the  instru- 
ment. It  is  said  that  the  check  was  not  payable  in  money,  but 
was  an  order  for  a  chattel,  without  naming  it.  We  do  not  tliink 
this  would  be  the  understanding  or  construction  of  such  an 
instrument  addressed  to  a  bank  whose  bnsiness  was  receiving 
and  paying  out  money.  See  ElliotCs  Case,  1  Leach's  Crown 
Cas.,  175 ;  The  State  v.  Dourden,  2  Dev.,  443 ;  Evans  v.  The 
State,  8  Ohio  St.,  196 ;  Carherry  v.  The  State,  11  LI,  410.  The 
check  is  for  the  payment  of  money,  or  the  payment  of  current 
funds  which  pass  as  money  between  banks,  or  between  a  bank 
and  its  customers.  The  words  "  personal  property,"  as  used  in 
the  statute,  "  include  money,  goods,  chattels,  things  in  action  and 
evidences  of  debt:"  Subd.  14,  sec.  3,  ch.  5,  R.  S.  If  the  order 
was  for  the  payment  or  delivery  of  things  in  action  or  evidences 
of  debt,  it  would  come  within  the  statute.  But  a  person  receiv- 
ing the  order  would  naturally  expect,  and  would  have  the  right 
to  assume,  that  it  was  payable  in  money,  or  in  bank-bills  whicli 
pass  for  money.  The  order  or  check  certainly,  on  its  face,  pro- 
fesses to  be  drawn  by  one  who  has  funds  in  the  bank  which  ho 


can  control, 
the  false  lUJi 
tutes  the  cri 

It  is  said 
particular  s 
certainly  ca 
general  argi 
the  body  of 
the  $  mark, 
of  that  wo 
this  positio! 
is  complete 
for  the  pay 
as  snrplusai 

A  still  f 
not  deceive 
This  object 
already  salt 
if  genuine, 
bank  for  t 
wealth  V. 
person  may 
the  counter 
the  drawer 
which  it  is 
a  valid  obli 
The  case 
answers  to 
that  court 
By  the  c 


FOROEUY 


A  FouoKn  i 
Mr.  Sell 
his  pay 
Held,  T 


CHIDESTER  r.  STATE. 


153 


can  control.  Under  the  circumstances,  we  have  no  doubt  tliut 
the  false  niakinji;  of  such  an  order,  with  fraudulent  intent,  consti- 
tutes the  crime  of  forgery  under  the  statute. 

It  is  said  that  tlie  order  does  not  direct  the  payment  of  any 
particular  sum  of  money,  but  is  indefinite  and  incomplete.  It 
certainly  calls  for  the  payment  of  fifty  dollars.  The  attorney- 
general  arjfues  that  the  word  "  hundred  "  should  be  supplied  in 
the  body  of  the  instrument;  tliat  the  figures  150.00,  preceded  by 
the  $  mark,  in  the  margin,  authorize  and  warrant  the  insertion 
of  that  word.  We  have  some  doubt  about  the  correctness  of 
this  position  ;  but  it  is  unnecessary  to  dwell  upon  it,  as  the  crime 
is  complete  as  the  order  now  stands.  At  least  the  check  calls 
for  the  payment  of  fifty  dollars,  the  word  "  one  "  being  rejected 
as  surplusage. 

A  still  further  objection  is,  that  the  check,  as  drawn,  would 
not  deceive  any  one,  nor  could  an  action  be  sustained  upon  it. 
This  objection  has  been  sufficiently  answered  by  what  has  been 
already  said  on  the  other  points.  It  seems  to  us  that  the  check, 
if  genuine,  would  create  a  liability.  For  it  is  an  order  upon  the 
bank  for  the  payment  of  fifty  dollars,  at  least.  In  Cow,mo7i- 
icealth  V.  White  and  another,  11  Cush.,  481,  it  is  held  that  "  a 
person  may  be  convicted  of  forging  a  check  on  a  bank,  although 
the  counterfeit  does  not  so  much  resemble  the  genuino  check  of 
the  drawer  as  to  be  likely  to  deceive  the  officers  of  the  bank  on 
which  it  is  drawn."  It  seems  to  us  that  this  chock  was  apparently 
a  valid  obligation,  and  had  a  tendency  to  defraud. 

The  case  must  be  certified  to  the  circuit  court,  with  these 
answers  to  the  questions  reported,  and  with  the  direction  that 
that  court  proceed  in  accordance  with  our  decision. 

By  the  court.     It  is  so  ordered. 


I  m 


« 


fif 


CniDKSTKR  V.  State. 

(25  Ohio  St.,  433.) 

FoROEUY  :     Ordvr  for  delivery  of  gooih  and  cJudtch  —  Evidence  —  Erroneous 

charge. 

A  FouoKf)  instnuiu'iil  wiis  in  the  followiiij?  torms  :  "AicnoN,  May  2,  1874. 
Mr.  SScliroi'dor:  I'lriixc  let  Mr.  Hor.swick  luivo  Iiis  cloUies,  and  I  will  hold 
his  piiy  till  next  Tuesday,  nuil  will  see  tiint  paid  for.  J.  Butleu." 
Held,  That  s\ich  liisfruinuiit  may  he  de.scrihud  in  an  indictment  as  un 


!       If. 


tm 


AMEKICAN  CRIMINAL  UEPOUTS. 


"order  for  the  delivery  of  goods  and  chattels  "  within  the  meaning  of  the 
statute. 

The  word  "value"  in  section  9;J  of  the  code  of  criminal  procedure,  is  used  la 
that  section  in  the  sense  of  "effect,'"  "  import,"  and  not  in  the  sense  of 
' '  worth  in  money. " 

On  the  trial  of  a  defendant,  charged  in  an  indictment  with  having  forged 
such  instrument,  where  evidence  has  been  given  tending  to  show  tlmt  the 
defendant  was  not  present  when  the  forged  instrument  was  made,  ii  ii 
error  for  the  court  to  refuse  to  instruct  the  jury  that  if  it  be  found  by 
them  that  the  defendant  was  not  so  present,  he  cannot  be  convicted  of 
the  ofifense  charged  in  the  indictment,  or  to  instruct  the  jury  that  if  it  be 
found  that  the  forged  instrument  was  made  by  another  person,  by  the 
procurement  of  the  defendant,  although  he  was  not  present  at  the 
forgery,  he  might  be  convicted  of  the  offense  charged  in  the  indictment. 

Error  to  the  court  of  common  pleas  of  Summit  county. 

At  the  October  term,  1874,  the  plaintiff  in  error  was  indicted 
for  forgery. 

The  indictment,  which  contained  but  one  count,  charged  him 
with  having  feloniously,  unlawfully  and  falsely  made,  forged  and 
counterfeited  a  certain  order  for  the  delivery  of  goods  and 
chattels,  "  which  said  false,  forged  and  counterfeited  order  is  lost; 
which  said  false,  forged  and  counterfeited  order  is  of  the  pur- 
port, effect  and  value  following,  to  wit : 

"Akuon,  May  2,  1874. 

"  Mr.  Schroeder  :  Please  let  Mr.  Borswick  have  his  clothes, 

and  I  will  hold  his  pay  till  next  Tuesday,  and  will  see  that  paid 

for. 

"J.  BUTLER. 

with  intent  then  and  there  and  thereby  to  unlawfully  defraud, 
contrary,"  etc. 

A  motion  to  quash  tlie  indictment,  and  a  demurrer  to  it,  were 
successively  tiled  and  overruled,  and  upon  arraignment,  the 
j>lai'  tiff  in  error  ])leaded  in  bar  a  former  actpxittal,  which,  on 
demurrer,  was  held  to  be  iusiitticient ;  whereupon,  for  a  further 
plea  to  the  indictment,  the  plaintiff  in  error  pleaded  "not  guilty." 

The  issue  thus  nuule  was,  at  the  same  term,  tried  to  a  jury, 
who  returned  into  court  a  verdict  tinding  the  plaintiff  in  error 
guilty,  as  charged  in  the  indictment. 

A  motion  was  then  tiled  asking  the  court  to  set  aside  the  ver- 
dict and  grant  the  ])laititiff  in  error  a  new  trial,  for  reasons 
founded  principally  on  alleged  erroi-s  of  the  court;  in  the  admis- 
sion of  testimony  ;  in  refusing  to  instruct  the  jury  as  requested; 


CHIDESTER  v.    STATE. 


155 


"filie  ^P  and  in  the  instructions  <;fiveii  to  the  jury,  which  was  overruled 
liv  tlie  court ;  whereupon  a  motion  in  arrest  of  judgment,  on  the 
ground  of  tlie  insufKciency  of  the  indictuicnt,  was  filed,  which 
was  also  overruled  hy  the  court  and  the  plaintiff  in  error 
sentenced  to  imprisonment  in  the  penitentiary  and  to  pay  the 
costs  of  prosecution. 

The  reversal  of  the  judgment  is  the  object  of  this  proceeding. 

If.  D.  Tlhhals,  for  plaintiff  in  error  : 

I.  The  instrument  set  out  in  the  indictment  is  not  an  order 
for  the  delivery  of  goods  and  chattels  within  the  meaning  of  the 
statute :    S.  &  S.,  2(i-t,  section  22. 

For  what  is  an  order,  see  Bouvier's  Law  Die.,  262 ;  Whart. 
Cr.  Law,  349  ;  11  Ohio  St.,  410 ;  17  Ohio  St.,  142  ;  18  Ohio  St., 
420.  It  must  purport  to  be  drawn  by  some  one  having  an  inter- 
est in  or  control  over  the  subject  matter  of  the  order.  Such  is 
not  the  case  here. 

II.  The  indictment  does  not  set  forth  the  value  of  the  instru- 
ment, as  required  by  section  93  of  the  criminal  code  (66  Ohio  S., 
301).  The  term  "  value "  was  used  in  this  statute  in  the  same 
sense  and  for  the  same  purpose  as  in  the  act  relating  to  grand 
larceny  (S.  &  S.,  263),  and  the  act  relating  to  petit  larceny  (66 
Ohio  L.,  341). 

III.  If  one  procure  another  to  falsely  forge,  the  procurer  can 
only  be  convicted  of  procuring,  or  aiding,  or  uttering,  upon 
indictments  therefor.  To  say  that  the  procurer  falsely  made,  is  a 
contradiction  of  terms.  Section  36,  S.  &  C,  416,  clearly  recog- 
nizes the  distinction  between  the  maker  and  procurer,  aider  and 
abettor. 

/.  M.  Paulson,  for  the  state  : 

I.  The  instrument  alleged  to  be  a  forgery  was  an  order  within 
the  meaning  of  the  act  (S.  &  S.,  264)  relating  to  forgery  :  Evans 
V.  State,  8  Ohio  St.,  196. 

II.  Section  93  of  the  criminal  code  does  not  require  the  value 
of  the  instrument  to  be  alleged,  nor  does  the  common  law. 
There  is  no  analogy  in  the  use  of  the  term  value  in  this  statute 
to  the  term  as  used  in  the  acts  relating  to  larceny.  In  larceny 
value  is  of  the  essence  of  the  offense,  that  its  grade  may  be  deter- 
mined. The  question  in  the  case  under  consideration  is,  was  the 
accused  guilty  of  an  intent  to  defraud  any  one  of  any  value. 

III.  It  is  well  established  in  Ohio  that  felony  may  be  com- 
mitted through  the  instrumentality  of  an  agent :     Breese  v.  The 


i' 


m  I 


1  : 


I 


■■Mi 


\ 


i% 


156 


AMERICAN  CRDIINAL  REPORTS. 


State,  12  Ohii.  St.,  146;  Warden  v.  The  State,  24  Oliio  St.,  U;!. 
Nor  is  tlie  rule  at  all  rocoiit  as  applied  to  tlu!  law  of  forgery; 
Wharton's  Am.  Crim.  Law,  4th  ed.,  sec.  1419  ;  2  Archb.  Criin. 
Pr.  and  PI.,  7th  ed.,  1860,  841. 
11.  G.  Sanford^  also  for  tlio  state. 

"Rkx,  J.  The  errors  assigned  upon  the  record,  as  grounds  for 
the  reversal  of  the'judgment,  present  two  questions  for  the  deter- 
mination of  this  court. 

1.  Does  the  indictment  charge  the  plaintiff  in  error  with  the 
commission  of  an  offense  against  the  provisions  of  section  22  of 
the  crimes  act,  as  amended  by  the  act  of  March  24,  1865  (S.  k 
S.,  264)? 

Tho  section  of  the  statute  under  which  the  indictment  wa; 
found,  among  other  offenses  therein  described,  makes  it  an 
offense  for  any  person  to  falsely  make,  forge,  counterfeit,  etc.,  anv 
order,  warrant  or  request  for  the  delivery  of  goods  and  chattels, 
with  intent  to  damage  or  defraud  any  person  or  persons,  and  it  is 
claimed  by  the  plaintiff  in  error  that  the  instrument  set  out  in 
the  indictment  is  not  an  order  for  the  delivery  of  goods  and 
chattels  within  the  meaning  of  this  statute,  in  support  of  which 
claim  he  cites  2  Bouv.  L.  Die,  262 ;  Carherry  v.  The  State,  11 
Ohio  St.,  410 ;  Bynam  v.  The  State,  17  Ohio  St.,  142  ;  Smith  v. 
The  State,  18  Ohio  St.,  420. 

It  is  true  that  the  instrument  set  oat  in  the  indictment  in  this 
case  does  not  direct  the  person  to  whom  it  is  addressed  to  dt'livor 
goods  of  the  drawer  to  the  person  named  in  the  order ;  but  it 
directs  the  drawee  to  deliver  certain  goods,  which  were  then  tlie 
property  of  the  drawee,  to  the  person  named  in  the  order,  on  the 
credit  of  the  drawer,  and  if  the  order  had  been  genuine,  would  • 
have  created  a  liability  on  the  part  of  Butler,  to  account  to 
Schroeder  for  the  value  of  the  goods  delivered  by  him  to  the 
plaintiff  in  error.  Indeed,  nothing  appears  in  the  order  from 
which  an  inference  can  be  drawn  that  the  relations  subsisting 
between  the  drawer  and  Schroeder  were  not  such  that  the  drawer, 
had  the  instrument  been  genuine,  had  a  right  to  expect  and 
require  the  compliance  of  Schroeder  with  the  direction,  and 
hence  we  are  of  opinion  that  the  instrument  set  out  in  the  indict- 
ment, is  an  order  for  the  delivery  of  goods  and  chattels  within 
the  meaning  of  the  statute. 

In  this  case  the  testimony  set  out  in  the  bill  of  exceptions 


CIIIDESTER  V.  STATE. 


157 


cstablislies  the  fact  that  the  object  intended  to  be,  and  which  was 
in  fact,  accomplished  by  the  instrument,  was  the  delivery  of  the 
iroods  described  in  it  to  the  plaintiff  in  error,  on  Schroeder's  faith 
in  its  genuineness,  Schroeder  having  knowledge  of  the  fact  that 
the  plaintiff  in  error  was,  at  the  time,  in  the  employ  of  Butler. 

The  cases  cited  by  the  plaintiff  in  error  in  support  of  his  claim 
are  not  in  conflict  with  the  conclusion  arrived  at  in  this  case. 

In  Carherry  v.  The  State,  the  court  held  that  a  forged  instru- 
ment which  directed  the  drawee  to  "  let  the  bearer  have  one  of  your 
smallest,  with  load,  to  charge  to  "  the  drawer,  was  not,  per  se,  an 
order  for  the  delivery  of  a  pistol  or  other  goods  of  any  kind,  and 
consequently  that  an  indictment  which  charged  a  defendant  with 
the  forgery  of  such  an  instrument,  without  proper  innuendoes  to 
•rive  it  a  character  and  meaning  not  apparent  on  its  face,  was  not 
fuflScient  to  sustain  a  conviction  upon  it. 

In  Bynam  v.  The  State,  the  court  held  that  an  indictment 
which  charged  the  plaintiff  in  error  with  forging  an  order  for 
the  payment  of  money,  of  the  following  tenor :  "  M.  C.  &  Co., 
pay  Binam  $5.75,  J.  L.  C,"  was  bad,  on  the  ground  that  the 
writing  on  its  face,  unaided  by  innuendo  or  the  statement  of 
extrinsic  facts,  did  not  import  an  order  for  the  payment  of 
money;  and  in  deliverin;^  the  opinion  of  the  court.  White,  J., 
says :  "  ^o  definite  meaning  can  be  ascribed  to  the  letters  '  M.  C. 
&  Co.,'  and  '  J.  L.  C  They  are  of  themselves  arbitrary.  The 
writing  of  itself  does  not  purport  to  be  by  or  on  any  person, 
natural  or  artificial."  So  that  the  actual  point  decided  in  the 
case  was,  that  the  indictment  was  bad  because  it  contained  no 
averment  to  show  what  the  letters  "  M.  C.  &  Co."  and  "  J.  L.  C." 
meant.  The  case  of  Smith  v.  The  State,  is  not  in  point.  In 
tliat  case  it  was  held  that  a  tax  duplicate  was  not  a  record  within 
the  meaning  of  section  22  of  the  crimes  act. 

It  is  further  urged  by  the  plaintiff  in  error  that  the  indictment 
is  defective  in  this,  that  it  does  not  aver  or  set  forth  the  value  of 
the  forged  instrument.  The  statute  creating  the  offense  does  not 
make  the  value  of  the  forged  instrument  a  part  of  the  descrip- 
tion or  an  ingredient  of  the  offense  for  any  purpose  whatever, 
neither  is  the  crime  of  forgery  included  in  the  crimes  named  in 
section  167  of  the  code  of  criminal  procedure,  and  hence  the 
value  of  the  forged  instrument  is  not  a  necessary  averment  in  an 
indictment  for  that  crime.  The  word  "  value,"  as  used  in  section 
93  of  the  code  of  criminal  procedure,  which  provides,  "  That  in 


iii^ 


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i  ,12..;. 

v'-: 

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,  1  • 

• 

mtm 


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Hi  6 


158 


AMERICAN  CRIMINAL  REPORTS. 


h) 


14' 
'111*  ^ 


an  indictment  for  falsely  making,  altering,  forging,  printing, 
pliotograpliing,  uttering,  disposing  of,  or  putting  off  any  instru- 
ment, it  shall  be  sufficient  to  set  forth  the  purport  and  value 
thereof,"  is  not  used  in  the  sense  of  the  "  worth  of  the  instru- 
ment in  money,"  but  in  the  sense  "of  the  effect  the  instrument 
is  intended  to  accomplish,"  and  hence  as  the  synonym  of  "  effect " 
or  "  import." 

2.  Did  the  court  err  in  refusing  to  instruct  the  jury  as 
requested  by  the  plaintiff  in  error,  and  in  the  instructions  as 
given? 

It  appears  from  the  bill  of  exceptions  that,  on  the  trial,  the 
plaintiff  in  error,  to  maintain  the  issue  on  his  part,  gave  evidence 
tending  to  show  that  the  instrument  set  out  in  the  indictment 
was  written  by  a  person  named  Smail ;  that  he,  the  plaintiff  in 
error,  was  not  present  when  it  v>'as  written,  and  that  he  used  it, 
knowing  that  the  signature  of  Butler  thereto  was  not  genuine, 
for  the  purpose  of  obtaining  from  Soliroeder  the  clothes  he  had 
previously  ordered  and  agreed  to  pay  for  on  delivery;  and  there 
being  no  evidence  on  the  part  of  the  state  tending  to  show  who 
<iid  write  the  order,  the  plaintiff  in  error  requested  the  court  to 
Instruct  the  jury  as  follows: 

"  If  the  jury  find  that  the  defendant  did  not,  in  fact,  write  or 
sign  the  instrument  described  in  the  indictment,  although  ho 
presented  and  delivered  it  to  Schrocder,  knowing  its  falsity,  and 
obtained  the  clothes  on  it,  yet  he  cannot  be  convicted  of  falsely 
forging  it,  under  the  charge  in  the  indictment."  Which  instruc- 
tion the  court  refused  to  give  without  the  following  niudilica- 
tion:  "But  if  you  find  that  the  uefendaiii  procured  another  to 
write  it  for  him,  he  would  be  just  as  guilty  and  would  be  guilty 
oi  forging  it ;  for  the  rule  '  that  what  one  does  by  another  ho 
dops  liimsclf,'  is  applicable  in  such  a  case." 

The  plaintiff  in  error  also  requested  the  court  to  instruct  the 
jury:  "Although  the  defendant  may  be  guilty  of  knowingly 
uttering  and  publishing  the  instrument,  yet  since  he  is  not 
charged  with  that,  but  of  falsely  forging  it,  he  can  only  be  con- 
vict :'d  upon  the  charge  in  the  indictment;  and  if  yon  find  that 
he  did  not  in  fact  make  and  forge  it,  he  muKt  be  acquitted. " 
Wliicii  was  by  the  court  "allowed  as  the  law,  bitt  subject  to  the 
same  (jualitication  as  above,  in  the  event  ho  did  it  by  another 
instead  of  himself." 


We  are 

the  jury  as 

The  plai 

made  out  i 

their  consi 

dence,  nee 

havo  been 

The  test 

did  not  CO 

committee 

could  not 

been  legal 

if  it  had  b 

be  commi 

that  he  wi 

Section 

&  S.,  200, 

act  to  be 

state,  mac 

penitentia 

as  the  pri 

curer  of  a 

offense  ag 

The  ju 

remanded 

McIlv. 
curred. 


On  the  trin 
tc  pre 
eviden 
living 

Wade 
ment  an 
overrulii 


_ 


lERRITORY  V.  WHITCOMB. 


159 


We  are  of  o|)iiiion  that  the  court  'erred  in  i-efusiiig  to  instruct 
the  jury  as  requested,  and  in  the  instructions  given. 

The  plaintiff  in  error  had  the  right  to  liavo  tlie  whole  case,  as 
made  out  in  the  evidence  ou  the  trial,  submitted  to  the  jury  for 
their  consideration.  The  instructions  asked  were,  under  the  evi- 
dence, necessary  to  the  proper  submission  of  the  (!a^e,  and  "should 
have  been  given,  substantially  as  requested. 

The  testimony  of  the  plaintiff  in  error  tended  to  show  that  he 
did  not  commit  the  forgery,  and  Wiis  not  present  when  it  was 
committed.  If  this  Lad  been  found  to  be  true  by  the  jury,  he 
could  not  have  been  found  guilty  of  forgery ;  nor  could  he  have 
been  legally  convicted  of  the  offense  charged  in  the  indictment, 
if  it  had  been  found  by  the  jury  that  he  procured  the  forgery  to 
]»e  committed  by  another,  unless  it  had  also  been  found  by  them 
that  he  was  actually  present  at  its  commission. 

Section  36  of  the  crimes  act,  as  amended  March  24,  1864,  S. 
&  S.,  266,  makes  it  a  separate  and  distinct  offense  to  procure  any 
act  to  be  done,  or  committed,  which  is,  by  any  statute  of  this 
state,  made  punishable  with  deatli,  or  1)y  imprisonment  in  the 
penitentiary,  and  subjects  tlie  procurer  to  the  same  punishment 
as  the  principal  offender;  and  hence  to  convict  a  person  as  pro- 
curer of  a  felony,  he  mnst  be  chargf »!  in  the  indictuient  with  an 
offense  against  'Jie  provisicnc  of  this  section  of  the  statute. 

The  judgment  must,   therefore,  be  reversed,  and  the  cause 

remanded  for  a  new  trial. 

Jmhjment  accordingly, 

McIlvaiiie,  C.  J.,  Welcu,  Wnrri:,  and  Gilmore,  JJ.,  con- 
curred. 


TeRRITOUY   v.    WllITCOMB. 
(1  Montauu,   J.VJ.) 

FOBNICATJON :      Kridiiice. 


On  the  trial  of  ftn  Indictment  for  forniciition,  it  ddvoivea  upon  the  prosecution 
tr  prove  that  the  respDndents  iiks  uniuiirricd,  In  fJic  iibscnce  of  nay 
evidence  on  tlie  Hiiliject,  llie  Itiw  piesumes  tliiu  a  niiin  and  woniiin  openly 
living  and  cohabiting  together  are  lawfully  married. 

Wadr,  0.  J.     Tins  case  is  here  npoii  appeal  from  the  jndg 
ment  and   verdict   in   the   court    below,   and    I'roin    the   order 
overruling  a  motion  for  a  )U!\v  trial. 


w 


im 


AMERICAN  CRIMINAL  REPORTS. 


Tins  is  an  indictment  for  fornication,  drawn  upon  tlie  one 
liundred  and  twenty-seventh  section  of  the  "act  concerning 
{•rimes  and  punishments,"  statutes  1865,  p.  209,  wherein  it  is 
aJle^^ed  tliat  on  the  20th  day  of  January,  1869,  Itt  the  county  of 
Lewis  and  Clarke,  the  defendants  Edward  Whitcomb  and  Cather- 
ine Durgen,  did  then  and  tliere  unlawfully  live  together  in  an 
open  state  of  fornication,  the  said  "Whitcomb  being  then  and 
there  a  single  and  unmarried  man,  and  the  said  Durgen  being 
then  and  there  a  single  and  unmarried  woman. 

This  was  the  separato  trial  of  the  defendant  "Whitcomb. 
Ajnong  the  errors  complained  of,  as  shown  by  the  record,  are 
the  following : 

1.  Tlie  refusal  of  the  court  to  give  the  following  instructions 
to  the  jury,  asked  for  on  behalf  of  the  defendant :  "  The  jury 
are  instructed  that  it  devolves  upon  the  prosecution  to  prove 
every  material  allegation  necessary  to  constitute  the  crime 
charged;  that  it  is  a  material  point  to  prove,  that  the  ])artie8 
charged  were  not  intermarried,  and  that,  in  the  absence  of  any 
testimony  upon  tliat  point,  the  jury  cannot  presume  that  the 
defendants  were  assoc'ating  unlawfully." 

2.  The  giving  of  the  following  instructions  to  the  jury,  asked 
for  by  die  prosecution  :  "  That  it  devolves  upon  the  prosecution 
to  prove  every  material  alli'gation  necessary  to  constitute  tlio 
crime  charged ;  that  it  is  a  material  |)oint,  that  tin;  jury  KJiouid 
believe  that  the  parties  charged  were  not  intermarried,  an  1,  if 
there  is  a  reasonable  doubt  upo!!  that  point,  tin;  jury  caniior,  j)r(!- 
Bumo  that  tiie  defendants  were  associating  unlawfully,  in  case 
there  is  evidence  sutlieient  to  raise  a  reasonable  doubt  in  tiie 
mind  of  the  jury  upon  that  j)oint." 

It  was  necessary  to  aver  in  tiie  indictment,  and  to  prove  upon 
the  trial,  that  the  defcndaiiL  was  single  and  uiimarrie<I ;  f(»r  the 
meaning  (»f  the  term  "  l'oriii<'ation  "  is  the  carnal  and  illicil  inter- 
course of  an  unmarried  person  with  the  opposite  sex.  It  is 
imposKible  for  a  married  man  and  a  married  woman  to  commit 
fornication.  Unlawful  sexual  inter(M»urse,  and  open  and  unlaw- 
ful living  together  of  a  marrie<l  man  and  marricsd  woman,  or 
where  either  an;  niarrie(l,  and  thus  have!  intcM'conrse  or  live 
together,  is  adultiM-y  ;  and  the  same  stal(!  of  facts  existing 
between  unmarried  persons,  man  and  woman,  is  forni(!ation. 

We  have  carefully  examined  the  record  of  evid(Mico  and  testi- 
mony in  this  case,  and  we  find  that,  upon  the  trial  of  this  ease. 


there  was 
to  show,  t 
crime  is  a 

If  they 
it  would  1 
vvo  so  li 
absence  o1 
viction  fo 
condition 
till  ri'irnc 
dell  iidaiit 
the  trial,  i 
a  convict! 

The  foi 
tli<  prose 
it  author: 
unmarrie( 
edge  and 

It  is  an 
no  belief, 
before  tl^ 
guardian 
must  beli 
in  open  < 
court  thai 
juryman 
beyond  rt 

The  ju 
{^ranted. 


FOUNICATI 


It  iM  not  in 

j^roatci 

riuM'M  I 

Vol, 


FORD  V.  STATE. 


161 


there  was  no  testimony  offered  or  received,  showing,  or  tending 
to  show,  that  tlicsc  defendants  were  not  married  at  the  time  the 
crime  is  alleged  to  have  been  committed. 

If  they  wi're  living  together  in  an  open  and  notorionb  manner, 
it  Wdiild  1)0  hut  a  reasonable  presumption  to  presume  that  they 
'  v  so  living  lawfully  and  as  they  had  a  right  to  do,  and,  in  the 
al)sence  of  any  proof  to  sliow  that  they  were  unmarried,  a  con- 
viction for  fornication  ought  to  be  impossible.  Even  the  married 
condition  of  either  of  the  parties  would  change  the  nature  of 
tin  MHO,  80  that  the  married  or  unmarried  condition  of  these 
det>  ndunts,  or  either  of  them,  was  a  most  material  inquiry  upon 
the  trial,  and  the  absonce  of  any  proof  upon  the  subjcit  renders 
a  conviction  l(\ga11y  impossible. 

"he  foregoing  instruction  asked  for  and  given  on  behalf  of 
ilii  prosecution,  is  inherently  wrong.  It  wil  be  observed,  that 
it  authorizes  the  jury  to  form  an  opinion  s  to  the  married  or 
unmarried  condition  of  the  <lefendants,  from  their  own  knowl- 
edge and  belief,  in  the  absence  of  aiiy  testimony  on  the  subject. 

It  is  an  old  and  familiar  doctrine  that  juries  must  have  or  form 
no  belief,  except  what  they  believe  frotn  the  testimony  produced 
before  them  at  the  trial.  Any  other  rule  would  destroy  this 
guardian  of  our  right  and  liberties — the  trial  by  jury.  The  jury 
must  believe  from  the  testimony,  legally  produced  before  them 
in  open  court,  and  from  that  alone,  and  any  instruction  of  the 
(tourt  that  permits  the  ))rivate  belief  or  private  knowledge  of  a 
juryinan  to  sway  his  findings  or  his  judgment,  is  wrong  and 
Ixyond  remedy. 

Tiie  judginent  of  the  court  below  is  set  aside,  and  a  new  trial 
granted. 

Kroeptions  (fustalned. 


Foiii)  '•.  Statk. 

(r»;j  Alii.,  150.) 

FoiiNiOATtON:    Aggramthn  of  offemf  wlwn  commitUd  bt/  a  ntgro  and  a  lehiU 

p  ■'•Hon —  CiinxUtiUioiial  law. 

It  is  not  in  violation  of  tlie  ronslitiUion  of  lliu  IJuitud  StiitcH  to  pnnlHli  with 
preattir  sfvcrity  fornl«!iitioii  iiiul  ailtiltcry  between  p^irsouH  of  different 
niot'M  Hum  li('t\v<!on  piTHonH  of  tl»e  HUine  rueo. 
Vol.  11.— U 


162 


AMERICAN  (JKIMINAI-  HKI'OHT.S. 


1 1 


The  appellants,  a  white  inaii  and  a  negro  woman,  were  indictc<l 
for  living  togethei-  in  adultery  or  fornication. 

The  indictment  was  demurred  to,  on  the  ground  that  it  charged 
no  offense,  and  that  tlie  section  of  the  Revised  Code  upon  which 
it  was  based  violated  the  constitution  of  the  state  and  of  the 
Ifnited  States. 

The  demurrer  having  been  overruled,  a  trial  was  had  on  a  pica 
of  not  guilty.  The  jury  having  found  the  defendants  guilty, 
they  liioved  in  arrest  of  judgment  on  the  ground  of  th(!  nneon- 
stitutionality  of  the  statute  on  which  the  indictment  was 
founded;  but  the  court  overruled  the  motion,  and  passed  sen- 
tence on  the  verdict,  and  hcuve  this  appeal. 

Jo/m  A.  /"outer,  for  api)ellants.  The  legislature  had  no  power 
to  make  sin  act  w!n'ch,  when  committed  by  persons  of  the  samt; 
race,  is  only  a  misdemeaTior,  a  felony  when  committed  by  ])ersons 
of  different  races.  Such  a  law  is  violative  of  the  constitution  of 
the  United  States  and  of  the  state  t>f  Alabama  :  /i  urn  ft  v.  Staff, 
4S  Ala.,  lJ>r). 

John  IF.  A.  Sant/ford,  attorn(;y-gen(!ral,  contra.  Every  state 
has  the  right  to  regulate  Its  domestic  affairs,  and  to  adopt  a 
domestic  policy  most  conducive  to  the  interest  and  welfare  of 
its  people:     SUKujkter  Tloum  Camn,  10  Wall.,  ;}({-7S. 

Section  3<l()2  of  the  Rcviscid  (]ode conflicts  with  no  provision 
of  the  state  oi*  federal  constitution,  and  is  repugiiant  to  no  act  of 
congress.  The  case  of  Barns  v.  State,  48  Ala.,  should  be  over- 
I'uled :  KUIh  <&  Thornton  v.  State,  42  Ala.,  r)2r> ;  dlhson  v. 
State,  ;{(!  Ind.,  389. 


Piou  CtiuiAM.  On  the  question  involved  in  this  case,  we  can 
add  nothing  to  the  thorough  discussion  it  receivetl  in  /i7//s  /). 
St(/fe,  42  Ala.,  525.  We  do  not  see  that  tUvw.  is  any  conllic't 
between  tlu!  <lecision  in  that  case  and  the  (hicision  in  flurns  v. 
State,  48  Ala.,  195.  The  latt(!r  case  involvt-d  only  \\\v  validity 
of  the  statute  prohibiting  marriage  betw(!en  whites  and  blacks. 
The  validity  of  tln!  statute  prohibiting  su(!h  persons  from  living 
in  adultery  was  not  involved.  \rarriag(!  may  be  a  natural  and 
civil  right,  pertaining  to  all  persons.  Living  in  adultery  is  (((Ten- 
sive to  all  laws,  human  and  divine,  and  human  laws  must  impose 
punishmentH  adeipiatc!  to  the  enormity  of  the  offense  and  its 
insult  to  public  decency. 

Affirmed. 


DAVIS  V.  COMMONWEALTH.  1G3 

Davis  v.  Commonwealth. 

(13  Bush.  [Ky.],  818.) 

BiQAMY  :    Indictment — Utah  Divorce. 

An  indictment  for  bigiiniy  which  docs  not  allege  the  time  and  place  and  the 
person  to  wliom  the  respondent  was  first  married,  is  bad  on  demurrer. 

A  reciord  of  divorce  wliieli  is  incomplete  on  its  face  is  not  admissible  in  a 
prosecution  for  bigamy,  eitlier  for  the  jjurpose  of  disproving  the  charge 
in  till!  in<lictntenl  or  for  the  purpose  of  establishing  the  good  faith  of  the 
respondent  in  «;onlra«!ling  the  alleged  bigamous  marriage.  Her  honest 
belief  lliat  she  had  been  lawfully  divorced  from  her  tirst  husbui>d  is  no 
defense;  to  the  charge. 

CiiiKK  .Ii'rtTicK  LiNDs.w  (lollvcred  tlie  o])iiuon  of  the  court. 

Tlu!  indictineiit  in  this  case  charges  tliat  ''  EVv/ai  A.  Davis,  on 

tlie (lay  of   May,    1S77,  in   the  county  aiul   state  aforesaid 

(Keiitoik  c(»uiity,  Ki'iitiicky),  and  he  fore  tlie  linding  of  tliis  indict- 
ment, having  a  hushand  tiien  living,  unhiAvfiilly  married  John 
Mackey,  against  the  j)eace  and  dignity  of  the  commonwealth  of 
Kentucky." 

The  statute  provides  that  "  whoever  being  married,  the  lirst 
liushand  or  wifi!,  as  the  case  may  he,  being  alive,  shall  marry  any 
person,  shall  be  confined  in  the  pc'iititntiary  not  lusH  than  thrco 
nor  more  than  nine  years." 

The  indicfnient  follows  substantially  the  language  of  the 
statute,  and  is  almost  an  exact  (topy  of  the  indictment  in  the  case 
<»f  the  ('()//! nionii'cd/fk  r.  Wftah'ij  ((>  ibish.,  2<)(»),  which  this 
court  held  to  be  sullicic^nt. 

Section  22,  chap.  JU  <d'  the  Knglish  statute  of  9  Geo.  IV.,  docs 
not  essentially  dilTer  either  in  substance  or  language  from  our 
own.  Vet,  in  indictments  framed  under  that  statute,  it  has  been 
(IciuikhI  necessary  to  avi-r  sp(;(!ilically  the  tinui  and  place  of  the 
first  nuirriage,  and  to  >.'t  (»ut  the  name  of  the  first  husband  or 
wife:  I'isliop  .'ii  ("riminal  I*ro(HMlure,  volume  2,  page  H81  ; 
Archbold  on  Criminal  i'ractice  and  IMeadiiig,  volume;  2,  p.  1024. 

liy  tilt!  second  subsection  of  section  122,  liullitt's  Criminal 
i\)i\v  of  I'ractice,  it  is  provid((d  that  tin;  indictment  must  contain 
"a  statement  of  tlu;  acts  constituting  the  olfenso  in  ordinary  and 
concise  language^  and  in  such  manner  as  to  enable  a  person  of 
common  understanding  to  know  what  is  intendtid  ;  and  with  such 
a  degree  of  certainty  as  to  onabli!  the  c(»urt  to  pronounce  judg- 


H-' ' 


104 


AilERlCAN  CRIMINAL  REPOIITS. 


u 
iln 


1 


ment,  on  conviction,  according  to  the  right  of  the  case;"  and 
subsection  4,  section  124,  provides  that  the  indictment  must  l)e 
direct  and  certain  as  regards  "  the  particular  circumstances  of  the 
offense  charged,  if  they  be  necessary  to  constitute  a  complete 
oilense." 

These  provisions  are  to  be  construed  in  the  light,  and  accord- 
ing to  the  principles  of  the  rule,  that  where  the  words  of  the 
statute  are  descriptive  of  the  offense,  the  indictment  will  be  suf- 
ficient if  it  shall  follow  the  language  and  expressly  charge  the 
described  offense  on  the  defendant.  But  this  rule  applies  only 
to  offenses  which  are  complete  in  themselves,  when  the  acts  set 
out  in  tli((  statute  have  been  done  or  performed. 

Suc'li  is  not  the  case  in  the  crime  of  bigamy  or  polygamy. 
The  second  maniage,  which  is  the  inhibited  act,  is  not  in  itself 
necessfi'Iiy  criminal.  Its  criminality  de])ends  upon  the  colhiteral 
or  extrinsic  facts  that  a  former  marriage  iias  tii.mu  place,  and 
that  the  first  husband  or  wife  is  alive  at  the  time  of  the  alleged 
polygamous  marriage.  Therefore  the  statute  in  <pu'stit»n  is  not 
in  itself  completely  descriptive  of  the  offense,  and  the  rule  in 
question  is  not  applicable  to  it. 

In  all  cases  the  indictment  must  set  forth  the  offense  charged 
with  such  a  degree  of  certaint)'  as  will  a])prise  the  defendant  of 
the  nature  of  the  peculiar  accusation  on  which  he  is  to  be  tried 
(1  Dev.,  90 ;  18  B.  :N[on.,  4!>;5 ;  and  '.)  MvA.,  5),  and  every  travers- 
able fact  must  be  alleged :  IVie  Sfatu  v.  Lfthore,  20  Vermont,  705. 

The  indictment  against  IMrs.  Davis  does  not  set  out  the  fact 
of  the  supposed  firs,  marriage.  It  does  charge  that  slu;  had  a 
iiusband  living  at  the  time  of  her  tnarriage  to  John  Mackey,  and 
froii  this  averment  of  a  conclusion  of  law  rather  than  of  fact,  it 
may  be  inferred  she  had  been  married  to  that  husband.  lUit 
such  iii(lire(!t  pleading  would  not  be  good  in  a  civil  cause. 

Tlie  appellant  had  the  right  to  be  informed  by  the  indictment 
of  the  name  of  the  j)erson  to  whom  the  ])rosecutlon  expe(^ted  to 
prove  she  had  been  first  married,  and  the  state  or  country  in 
which  such  alleged  marriage  took  place. 

The  indictment,  as  drafted,  nmde  it  necessary  that  she  should 
stand  prepared  to  rebut  such  proof  as  the  commonwealth  might 
make  as  to  her  former  marriage  to  any  and  every  man,  and  in 
any  and  all  countries. 

Tried  by  each  and  all  the  rules  of  pleading  to  which  wo  havo 
called  attention,  the  indicttnent  is  insufHcicnt.     Wo  must,  tlu;ro- 


HOOD  V.  STATE. 


16> 


fore,  assume  the  responsibility  of  overruling  the  case  of  the  Com- 
monweaUh  v.   Whaley  (6  Bush.,  266). 

The  court  did  not  err  in  refusing  to  admit  the  Utah  record  as 
evidence.  It  is  incomplete  upon  its  face,  and  was  clearly  inad- 
missible to  prove  that  the  appellant  had  been  divorced  from 
Davis  by  a  court  of  competent  jurisdiction.  Neither  was  such 
record  competent  for  the  purpose  of  proving  that  the  appellant 
in  go<»<l  faith  believed  she  had  been  divorced.  In  most  offenses 
the  evidence  of  the  felonious  intent  may  be  met  and  rebutted  ; 
but  in  this  the  statute  lijis  Hxed  the  exceptions,  one  of  which  is 
in  favor  of  persons  who  have  been  lawfully  divorced  and  per- 
mitted to  marry ;  and  the  courts  can  not  extend  this  exception  to 
persons  who  have  not  been,  but  wlio  in  good  faith  believe  they 
have  been  lawfully  divorced  t  Commionwealih  v.  Marshy  7 
Met.,  472. 

But  for  the  reasons  given  the  judgment  against  the  appellaut 
is  reversed,  and  the  cause  remanded  with  instructions  to  the 
criminal  court  to  sustain  the  demurrer  to  the  indictment. 


FoRN  ic  ATiON :    Adultery  - 


IIooD  V.  State. 

(56  Ind.,  203.) 

Utdh  dimrce  —  JurUdietion  —  Constitutional  lau)  — 
Criminal  intent. 


The  Indiana  stiitute,  wliich  provides  "  tlnit  crinica  and  misdemciinors  shall 
!)('  defined, "  etc.,  is  reiMiiled  7)ro  (nnfo  l)y  a  later  statute,  prescribing  a 
piiiiisliment  for  a  ciinu;  which  it  does  not  define,  and  therefore  an  indict- 
iiitiil  founded  upon  a  statute  puuisliiiijf  "open  and  notorious  adultery  or 
fonucation"  is  good,  although  the  statute  does  not  dt^fliie  tiic  tirime. 

The  cniirts  of  I'tnli  hive  ud  jurisdiclion  to  uranl  a  divorrc  heiween  residents 
and  citi/iiiH  of  on((  of  the  Unitcil  States,  neither  of  whom  is  a  residen'  of 
lluh  at  the  time  the  divorc«»  proceedings  are  had. 

ForniiMtion,  at  the  eomniim  law,  is  sexual  inl<  reoursc  between  a  man,  mar- 
liccl  or  siiiuie,  ami  lui  unmarriol  woiiiau. 

Adultery,  at  tht-cointuon  law,  Is  sexual  interctmr.sc  between  a  married  w  Mttan 
and  !i  man,  innrried  or  sinu-le,  other  tli;»n  her  husband. 

The  provi-ji.n  in  tiie  ron^tiiutlon  of  the  United  States,  ilmi  "full  faith  and 
crtnUt  Nhall  be  givou  in  each  state,  to  the    fulnllu'  acts,  records  and  judi 
eial  proccnlinL'^i  of  <'very  other  stale,"  di'i  -   not  incluiie  j\uigmei)'s  and 
decreets  \vhi<  li  -\\i>\\  upon  their  face  that  the  ouuri^  rt^aUefiLg  them  hail 
no  jurisdictliin  in  the  luemises. 


I 


hW  ' 


166 


AMERICAN  CItlMlNAL  REPORTS. 


r 


The  respondent  had  procured  it  divorce  in  Utah,  which  was  void  for  want  of 
jurisdiction.  Relying  r.pon  this  divorce  he  married  and  openly  cohabiled 
with  another  woman  \a  Indiana.  Held,  that  he  was  guilty  of  open  and 
notorious  fornication,  and  tliat  his  reliance  on  the  Utah  divorce  was  no 
defense,  he  being  conclusively  presumed  to  know  the  law. 

Pebkin8,  C.  J.  Indictment  against  Nelson  F.  Hood  for  liv- 
ing in  open  and  notorious  fornication  with  one  Jane  Chancy. 
A  motion  to  qnash  the  indictment  was  overruled.  Plea,  not 
guilty.  Trial  by  jury.  Conviction.  New  trial  denied,  and  the 
defendant  sentenced,  over  a  motion  in  arrest  of  judgment,  to  pay 
a  fine  of  one  hundred  dollars,  be  imprisoned  in  county  jail  six 
months,  and  pay  the  costs  of  prosecution,  etc. 

A  bill  of  exceptions  contains  the  evidence. 

The  state  proved  that  the  appellant,  Hood,  was  married  in 
Clark  county,  Indiana,  to  Maggie  Horton,  in  July,  1869,  and 
that  said  Maggie  is  still  living.  The  state  proved  further,  that 
in  June,  1876,  the  appellant.  Hood,  married  Miss  Jane  Chancy, 
of  the  state  of  Kentucky,  and  that  soon  after  the  marriage  the 
two  took  up  their  rchidcnce  in  Aurora,  Dearborn  county,  Indiana, 
where  they  continued  to  reside,  living  together  openly  and 
notoriously  as  man  and  wife,  till  the  finding  of  this  indictment. 

The  appellant  then  gave  in  evidence  parts  of  the  statutes  of 
Utah  on  the  subject  of  divorce. 

The  first  section  of  that  statute  confers  jurisdiction  upon  the 
probate  court  to  grant  divorces.  The  second  section  provides 
that  "the  petition  for  a  bill  of  divorce  must  be  made  in  writing, 
upon  oath  or  affirmation,  and  must  state  clearly  and  specifically 
the  causes  on  account  of  which  the  plaintiff  seeks  relief.  If  the 
court  is  satisfied  that  the  person  so  applying  is  a  resident  of  the 
territory,  or  wishes  to  become  one,  and  that  the  application  is 
made  in  sincerity,  and  of  her  own  free  will  and  choice,  and  for 
the  purpose  set  forth  in  the  petition,  the  court  nuiy  decree  a 
divorce  from  the  bonds  of  matrimony  against  the  husband  for 
any  of  the  following  causes,  to  wit : "  [Here  follows  a  specifica- 
tion of  causes.] 

Section  three  is  this:  "The  husband  may,  in  all  cases,  obtain 
H  divorce  from  his  wife  for  like  causes,  and  in  the  same  manner, 
as  the  wife  may  obtnin  a  divorce  from  her  husband."  The 
statute  provides  further,  for  tlie  service;  of  pi-ocess  on  persons 
found  within  the  territory,  atid  for  piibliciition  of  notice  to  those 
made  defendants  who  can  not  be  found  within  the  territory. 


HOOD  V.  STATE. 


107 


The  appellant  then  gave  in  evidence  the  record  of  a  suit  for 
divorce,  prosecuted  in  Utah  territory.  The  commencement  of 
the  complaint  in  the  suit  is  as  follows : 

"  Nelson  F.  Hood  v.  JVfaggie  11.  Hood,  in  the  probate  court  of 
Beaver  county,  territory  of  Utah. 

"  The  plaintiff  (complains  and  alleges,  that  plaintiff  and  defend- 
ant are  husband  and  wife;  that  they  intermarried  at  Jefferson- 
ville,  state  of  Indiana,  on  the  third  day  of  July,  1809,  and  ever 
since  have  l»een,  and  now  are,  husband  and  wife ;  that  plaintilf 
wishes  to  become  a  resident  of  Beaver  county,  Utah,  but  is  so 
situated  that  he  can  not  at  present  carry  his  desire  into  effect." 

The  complaint  then  proceeds  to  state  grounds  on  which  a 
divorce  is  prayed.     It  is  signed : 

"NELSON  F.  HOOD. 

"A.  GOODRICH,  Plaintiff's  Attorney." 

The  complaint  was  sworn  to  in  Cook  county,  Illinois,  before 
''A.  Gooilrich,  commissioner  of  deeds  for  Utah  territory,"  on  the 
14th  day  of  August,  1876,  and  tiled  in  the  clerk's  office  of  Beaver 
county,  in  said  territory,  on  the  24:th  day  of  the  same  montl.«, 
accompanied  by  an  affidavit  of  the  non-residence  of  the  defend- 
ant. This  affidavit  was  sworn  to  on  the  14th  day  of  August, 
1870,  the  day  on  which  the  complaint  was  verified,  before  "  A. 
(Toodricli,  commissioner  of  deeds  for  Utah  territory,"  apparently 
the  same  person  who  administered  the  oath  of  the  appellant  to 
the  complaint. 

After  entries  of  further  interlocutory  proceedings,  the  calling 
of  the  defendant,  the  entry  of  her  default,  the  hearing  of  proof 
of  the  allegations  in  the  complaint,  etc.,  the  recoril  continues 
thus : 

"  On  rlie  4th  day  of  October,  A.  D.  1870,  the  same  being  one 
of  the  days  of  the  September  term  of  the  probate  court  of  Beaver 
<'ounty,  Utah  territory,  and  the  said  ])laintiff  appearing  by  his 
counsel,  A.  (Joodrich  and  Daniel  Tyler,  and  the  said  defendant 
not  appearing  by  herself  or  counsel,  and  having  been  duly  served 
with  the  j)ro(!ess  of  this  court,  as  recjuired  by  the  statute,  sum- 
mons having  been  duly  served  upon  her  l)y  publication  of  the 
same  for  forty  days,  in  said  territory,  as  retjuired  by  the  stiitnte 
of  Utah,  and  having  been  three  times  solemnly  called  to  plead, 
answer  or  demur  to  plaintiff's  said  complaint,  and  coming  not, 
but  making  default  therein,  the  complaint  of  said  plaintiff  was 


'If! 


P 


.ji 

u 


is- 


108 


AMERICAN  C'KIMINAI.  HEPOHTS. 


thereupon  tiikanj/ro  coiifettm.  And  now,  agiiin,  on  this  the  4th 
(Jay  of  Octohor,  187C,  it  being  at  the  September  term,  A.  I). 
1870,  of  court,  the  said  cause  came  on  for  hearing  before  tlie 
court. 

"And  the  court  liaving  heard  tlie  testimony  in  said  action, 
from  which  it  appears  that  all  the  material  allegations  in  plaiis- 
tifTs  petition  are  true  and  sustained  by  the  testimony,  free  from 
all  legal  exceptions  as  to  the  competency,  admissibility  and  sufH- 
ciency,  ihat  the  plaintiff  and  defendant  were  lawfully  married  at 
Jefferson ville,  state  of  Indiana,  on  the  3d  day  of  July,  1809,  and 
that  said  parties  can  not  live  in  peace  and  union  together,  and 
that  their  welfare  recpiires  a  separation,  and  that  the  j)laintilV 
wishes  to  become  a  resident  of  the  county  of  Beaver,  and  terri- 
tory of  Utah,  that  said  matters  and  things  so  alleged  and  proved 
in  behalf  of  the  jjlaintiff  are  sufficient  in  law  to  entitle  the  plain- 
tiff to  the  relief  prayed  for. 

"  Therefore,  it  is  ordered,  adjudgoil  and  decreed,  and  the  court, 
by  virtue  of  the  power  and  authority  therein  vested,  and  in  pur- 
suance of  the  statute  in  such  case  made  and  provided,  does  order, 
adjudge  and  decree  that  the  marriage  between  the  said  plaintiff, 
Xolson  F.  Hood,  and  the  said  defendant,  Maggie  IT.  Hood,  be 
dissolved,  and  the  same  is  hereby  dissolved  accordingly,  and  the 
said  parties  are,  and  each  of  them  is,  freed  and  absolutely  released 
from  the  bonds  of  matrimony,  and  all  the  obligations  thereof; 
and  that  all  and  every  duty,  rights,  rights  of  dower  and  courtesy, 
claims,  and  claims  for  alimony,  accruing  to  either  of  said  parties 
by  reason  of  said  marriage,  shall  henceforth  cease  and  determine, 
and  that  the  said  parties  be  severally  at  liberty  to  marry  again  in 
like  manner  as  if  they  never  had  been  married. 

(Signed)  "  WILLIAM  JAMES  COX, 

*' Probate  Judge  of  Beater  County." 

There  was  evidence  tending  to  prove  that  appellant.  Hood, 
was  not  within  the  territory  of  Utah  during  the  year  the  above 
decree  of  divorce  was  granted,  and  ha(i  not  been  for  years  ])reviou8. 

The  indictment  in  this  case  was  predicated  npon  section  21 
of  the  act  touching  misdemeanors  (2  il.  S.  1870,  p.  400),  which 
reads  thus: 

"  Every  person  -wlio  shall  live  in  open  and  notorious  adulterv 
or  fornication  shuii  be  fined  in  any  sum  not  exceeding  one  thou- 
sand dollars,  and  imprisonment  not  exceeding  twelve  months." 


HOOD  V.  STATE. 


169 


if 


The  point  is  made  that  an  indictment  will  not  lie  upon  this 
section  of  the  misdemeanor  act,  because  it  does  not  define  the 
offenses,  or  either  of  them,  named  in  it.  Such  was  formerly  held 
to  be  the  law  in  this  state,  but  latterly  the  law  l:as  been  held 
otherwise.  " 

The  statute  (our  misdemeanor  act),  upon  a  section  of  which  the 
indictment  in  this  case  is  based,  was  approved  June  lith,  IS.')!: 
Another  statute  had  been  enacted  on  the  31st  of  May,  1S52  (1 
(jr.  &  II.,  415),  which  declared  that  "  crimes  and  misdemeanors 
shall  be  defined,  and  the  punishment  therefor  fixed,  by  statutes 
of  this  state,  and  not  otherwise."  In  Wall  v.  The  State,  23  Ind., 
150,  this  court,  in  construin*;  the  act  of  June  10th,  1852,  touch- 
ing felonies,  and  the  act  of  May  21st,  1852,  stipra,  held  that 
these  statutes  cannot  be  construed  together,  but  fall  within  the 
rule  that  a  latter  statute  repeals  a  prior  inconsistent  one,  and  that 
whenever,  after  the  31st  May,  1852,  the  legislature  does  create  a 
crime  by  name,  without  defining  it,  such  statute,  being  in  con- 
flict with  the  act  of  the  31st  of  May,  supra,  repeals  that  act,  and 
the  act  creating  a  crime,  without  defining  it,  stands.  This  deci- 
sion was  followed  in  The  State  v.  Craig,  23  Ind.,  185,  and  in  The 
State  V.  Orkins,  28  Ind.,  364,  and  the  earliest  cases  holding  the 
contrary  doctrine,  viz. :  Hackney  v.  The  State,  8  Ind.,  494 ; 
Jennings  v.  The  State,  16  Ind.,  335  ;  The  State  v.  Iluey,  16 
Ind.,  338;  and  Marvin  v.  The  State,  19  Ind.,  181,  are  overruled 
in  Wall  V.  T  e  State,  supra.  We  adhere  to  the  latter  decisions 
in  the  interest  of  legal  stability. 

The  next  question  arising  in  the  cause  is  this,  is  the  divorce 
granted  in  Utah  valid  ? 

It  is  valid,  if  the  court  granting  it  had  full  jurisdiction.  Had 
it  ?  It  appears  by  the  record  that  the  divorce  was  granted  in  a 
suit  between  two  persons,  neither  of  whom  was,  at  the  time  of 
the  proceedings,  a  resident  of  Utah,  or  within  the  boundaries  of 
the  territory,  nor  had  previously  been,  but  both  of  whom  were 
residents  and  citizens  of  a  state  in  the  Union.  Neither  of  the 
parties  had  placed  himself  or  herself  under  the  jurisdiction  of 
IHali.  Such  being  the  case,  it  is  well  established  that  the  court 
in  Utah,  had,  and  could  have,  no  jurisdiction  to  grant  the  divorce 
in  question,  and  that  the  same  is  inoperative  and  utterly  void. 
This  is  a  question  to  be  decided  by  the  jus  gentium,  the  law  of 
nations,  the  first  principles  of  which  are,  that  all  nations,  in 
respect  to  rights,  are  equal,  and  that  eacli  is  sovereign  within  its 


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own  territory,  with  jurisdiction  over  the  persons  and  property 
therein:  1  Kent  Com.,  21.  Hood,  when  the  divorce  in  ques- 
tion was  granted,  was  nnder  a  jurisdiction  otlier  tlian  that  of 
Utah.  It  is  further  settled  tliat  tlie  states  of  the  Union,  as 
between  themselves,  are  sovereignties.  In  dcterminin}i;  tliis 
(piestion  of  jurisdiction,  therefore,  we  have  only  to  inquire  what 
jurisdiction  the  state  of  Indiana  has  over  the  people  and  property 
within  the  territory  of  Utah ;  for,  on  tliis  point,  the  states  and 
territories  are  severally  equal.  What  jurisdiction  Illinois  can 
exercise  over  residents  and  property  in  Indiana,  Indiaiia  can  exer- 
cise over  residents  and  property  in  Illinois. 

To  place  this  matter  in  another  light,  a  state  may  anthorize 
divorces  to  be  granted  by  legislative  act.  Suppose,  then,  that 
the  legislature  of  Utah  had  granted  this  divorce  (neither  of  the 
parties  being  citizens  or  inhabitants  of  the  territory),  severing  a 
domestic  relation  between  two  citizens  of  and  residents  in 
Indiana,  would  any  one  claim  that  the  divorce  would  be  valid  ? 
If  it  would  be,  then  it  follows  that  the  state  of  Indiana  can  con- 
fer upon  her  legislature  power  to  divorce,  by  statutory  enact- 
ment, husl)ands  and  wives,  citizens  and  residents  of  Utah,  or  of 
Illinois  or  Ohio.  And  if  so,  what  becoiues  of  the  doctrine  of  the 
sovereignty  of  states  and  nations  wiihin  their  own  re8j)ective 
territories  ?  And  if  the  legislature  of  Utah  cannot  grant  divorces 
to  residents  and  citizens  of  foreign  states,  it  cannot  (!onfer  such 
power  uj)on  the  judiciary  of  the  state.  Certainly,  as  a  gcnieral 
j)rop()sition,  states  and  nations  can  not  exercise  such  extra-terri- 
torial jurisdiction.  IJut  we  need  not  enlnrge  upon  these  estab- 
lished elementary  principles.  The  case  before  us  is  too  plain  to 
admit  of  argument.  It  is  shortly  this:  Hood  desinsd  to  obtain  a 
divorce  from  his  wife.  Neither  of  the  parties  was  under  the 
jurisdiction  of  Utidi.  The  petition  of  Hood  and  the  decree  of 
divorce  expressly  state  this  fact.  If  ho  was  n(»t  a  citizen  ajid 
resident  of  Utah,  he  was  of  s(»me  other  state  or  nation.  Still  the 
court  of  Utah  grants  a  divorce  to  a  man  who  informs  it,  in  his 
application,  that  he  is  under  a  jurisdiction  other  than  that  of  the 
t(*rritory  of  Utah,  and  that  he  is  not  subject  to  her.  The  divorce 
fuaiiitestly  was  granted  in  viohition  of  the  sovi^reignty  and  juris- 
diction of  another  state,  and  in  violation  of  the  i)lain('st  princijiles 
r»f  international  and  constitutional  law.  The  provision  in  the 
statute  of  {'tab,  authorizing  her  courfs  to  grant  divorces  to  citi- 
zens of  foreign  states  and  nations,  who  were  not,  but  desired  to 


nOOD  V.  STATE. 


171 


become,  residents  of  Utah,  M-as  ultra  vires  and  void.  No  plainer 
or  more  palpable  case  of  the  exercise  of  extra-territorial  jurisdic- 
tion could  exist.  Hood  was  not  only  not  a  citizen  or  resident  of 
the  territory,  but  he  did  not  personally  enter  the  territory,  so  as 
to  give  it  jurisdiction  over  him  for  temporary  policie  purposes. 
We  cite,  on  the  question  of  jurisdiction,  the  following  cases  in 
our  own  state,  and  the  cases  referred  to  in  them  :  Sturf/ls  v. 
Fay,  16  Ind.,  429 ;  The  Eaton,  etc.,  /?.  li.  Co.  v.  Hunt,  2()  Ind., 
457;  Beard  v.  Beard,  21  Ind.,  321;  Constitution  of  Indiana, 
article  14. 

Nor  is  the  decree  of  divorce  in  this  case  within  the  operation 
of  that  clause  of  the  constitution  of  the  United  States  which 
declares  that  "  full  faith  and  credit  slnill  be  given  in  each  state  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state :"     Const.  ^7.  S.,  art.  4,  sec.  1. 

That  clause  does  not  include  judgments  and  decrees  which 
severally  show  upon  their  face  that  the  courts  rendering  them 
had  no  jurisdiction  in  the  promises:  Wattn  v.  Borrowai/,  25 
Ind.,  380 ;  Cooley's  Const.  Lim.,  2d  ed.,  p.  17. 

To  avoid  misconstruction,  we  wish  it  to  be  borne  in  mind  that 
the  record  of  the  suit  in  the  territory  of  Utah,  in  question  in  this 
vi\»G,  was  Jiot  one  upon  an  ordinary  sim))lo  contract  between  the 
parties  who  could  make  and  rescind  such  contract  at  pleasure,  but 
it  was  a  suit  to  sever  the  bonds  of  matrimony  between  the  parties 
in  that  suit ;  to  dissolve  u  relation  into  which  the  parties  could 
enter  only  in  accordance  with  the  law  of  the  state,  and  which 
could  not  bo  dissolved  by  act  of  the  parties,  but  only  by  permis- 
sion of  the  state  having,  at  the  time,  jurisdiction  over  both  or 
one  of  them.  As  is  well  said  by  Stuart,  J.,  in  JVoel  v.  Irohuj, 
9  Ind.,  37:  "Marriage  is  more  tha.i  a  contract.  It  is  not  a 
mere  matter  of  pecmiiary  consideration.  It  is  a  great  public 
institution,  giving  character  to  our  v/hole  civil  |)<>lity.  It  is  a 
status,  a  domestic  relation  resulting  from  a  consununiited  contract 
to  marry  :  Ditxon  n.  Dlf/ton,  4  11.  I.,  87;  The  People  v.  Dainell, 
25  Mich.,  247.  It  is  to  a  ])roceediiig  to  dissolve  such  a  relation, 
that  what  is  said  in  this  case  applies. 

To  give  jurisdi(!tion  in  a  divorce  suit  the  plaintiff,  the  jietition- 
ing  party,  must  bo  a  resident  of  the*  state  or  territory  where  the 
divorce  is  obtaituxl.  This  fact  gives  jurisdiittion  of  such  person, 
and  renders  the  divorce  (notice  by  pui)iication  or  otherwise 
having  been  given  to  the  <lefendant)  valid  as  to  the  plaintiff; 


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AMERICAN  CRIMINAL  REPORTS. 


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and,  being  valid  as  to  one,  r^ublic  policy  demands  that  it  should 
be  held  valid  as  to  both  parties :  Tolen  v.  Tolen,  2  Blackf.,  407 ; 
Jemum  e.  Jeuness,  24  Ind.,  355 ;  Ervingv.  Erving,  24  Ind.,  46S  ; 
JJitson  V.  Ditson^  supra.  Having  arrived  at  tlie  conclusion  that 
the  Utah  divorce  was  void,  and  that  appellant  is  still  the  husband 
of  the  woman  whose  maiden  name  was  Maggie  Ilorton,  and  that 
he  is  not  the  husband  of  Jane  Chancy,  we  proceed  to  inquire 
whether  he  is  shown  to  be  guilty  of  the  offense  for  which  he  was 
indicted.  He  was  indicted  for  fornication.  Our  statute  does 
not  define  fornication  or  adultery ;  but  crimes,  as  we  have  seen, 
need  not  to  be  defined  by  the  statute,  and,  consequently,  the 
court  must  judicially  declare  the  definition. 

Fornication  is  sexual  intercourse  between  a  man,  married  or 
single,  and  an  unmarried  woman.  Adultery  is  sexual  connection 
between  a  married  woman  and  an  unmarried  man,  or  a  married 
man  other  than  her  own  liusband. 

These  definitions  are  not  in  accordance  witli  some  authorities, 
but  they  are  with  others,  and,  we  think,  the  better;  and  they 
appear  to  us  to  be  in  harmony  with  the  reason  of  things.  We 
will  limit  the  discussion  of  this  topic  to  the  question  of  adultery ; 
as  when  we  show  what  that  is,  we  necessarily  show  wliat  fornica- 
tion is,  as  unlawful  sexual  intercourse  that  is  not  adultery  is 
fornication. 

"  By  the  civil  law,  adultery  could  only  bo  committed  by  the 
unlawful  sexual  intercourse  of  a  man  with  a  married  woman. 
Thus,  as  is  stated  in  Wood's  Institute,  272,  adultery  is  a  carnal 
knowledge  of  another  man's  wife,  and  the  connection  of  a  mar- 
ried man  with  a  single  woman  does  not  make  him  guilty  of  the 
crime  of  adultery."  Dewey,  J.,  Commonwealth  v.  Call,  21 
Pick.,  509. 

Bicknell,  in  his  Criminal  Practice,  p.  440,  thus  states  what  lie 
understands  to  be  the  law  in  Iiuliana  on  this  point:  "Strictlv, 
adultery  consists  in  carnal  connection  with  anotlicr  man's  wife; 
sucii  an  act  is  adultery  and  not  fornication  :  2  Ulackf.,  318,  and 
the  sexual  intercourse  of  any  man  with  a  married  woman,  is 
adultery  in  both,  and  the  intcrconrfio  of  a  married  man  with  an 
unmarried  woman,  is  fornication  in  both." 

In  T/m  State  v.  Walla>;e,9N.  II.,  5ir.,  it  is  hold  that  "an 
unmarried  man  who  has  unlawful  intercourse  with  a  married 
woman,  from  which  spurious  issue  may  arise,  is  guilty  of 
adultery." 


, 


HOOD  V.  STATE. 


173 


r>ut  the  cai?e  in  which  the  question  has  been  more  fully  and 
learnedly  examined  than  in  any  other  which  has  fallen  under  our 
notice,  is  T/ie  State  v.  Lash,  1  Harrison,  380,  from  which  we 
make  copious  extracts : 

"There  never  was  an  action  for  adultery  known  to  be  main- 
tained at  the  common  law  by  any  but  a  husband ;  showing  that 
the  offense  can  not  possibly  be  committed  with  any  other  than  a 
married  woman.  The  heinousness  of  it  consists  in  exposing  an 
innocent  husband  to  maintain  another  man's  children,  and  having 
them  succeed  to  liis  inheritance.  This  is  the  common  law  doc- 
trine of  adultery,  transmitted  to  us  from  the  earliest  times,  by 
those  venerable  sages  who  gathered  it  from  existing  precedents, 
records  and  decisions,  at  the  times  they  respectively  wrote.  I 
nhall  cite  only  a  few  of  them,  because  the  records  and  decisions 
referred  to  by  them  have  been  so  faithfully  consulted,  and  the 
testimony  of  those  sages  examined  and  condensed  with  sncli 
admirable  precision,  in  the  imperlsliable  commentaries  of  Blauk- 
stone,  that  it  is  almost  vanity  to  go  behind  his  work. 

"More  definite  language  can  not  be  selected  for  confining 
adultery  to  illicit  intercourse  witli  a  married  woman  than  his 
following  definition  of  the  offense:  'Adultery,  or  criminal  con- 
versation with  a  man's  wife.'  The  woman  must  not  be  single, 
she  must  be  another  man's  wife,  and  whoever,  married  or  single, 
has  illicit  intercourse  with  her  becomes  guilty  of  adultery.  The 
text  is  in  55  1>1.  Com.,  l.^l),  and  is  so  dear  of  ambiguity  as  to 
challenge  any  attempt  to  evade  it. 

"  Let  us  next  see  how  Buller,  in  book  1,  ch.  0,  of  his  intro- 
duction, coincides  with  the  connnentaries.  Tie  says:  'The  action 
of  adultery  lies  for  the  injury  done  to  the  husband,  in  alienating 
liis  wife's  affections,  destroying  the  comfort  ho  had  from  her 
company,  and  raising  children  for  him  to  support  and  provide 
for:'  Bui.  N.  P.,  2<5.  He  represents  adultery  to  be  an  injury 
to  a  husband,  exposing  him  to  have  children  of  another  man, 
raised,  for  him  to  support,  while  lie  lives,  and  to  provide  for  at 
his  death.  This  injury  to  a  husband  is  made  the  very  gist  of 
adultery.  No  one  will  suppose  \\\\\\  to  moan  that  the  alienation 
of  the  wife's  affections,  and  loss  of  comfort  in  her  company, 
constitute  the  offense.  The  alienation  of  her  affections  might 
accrue  from  the  malignancy  of  his  own  temper,  and  the  loss  of 
comfort  in  her  company,  from  lunacy.  lie  does  not  inean  that 
any  nuUigiumcy  of  temper,  or  that  lunacy  or  any  otiior  sickncsa 


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174 


AMERICAN  CRIMINAL  REPORTS. 


amounts  to  aJultory;  tliey  are  only  aggravations  tliat  may  or 
may  not  attcjiid  the  offense ;  therefore,  the  essence  of  adultery 
at  the  common  law  without  which  action  can  not  be  main- 
tained, is  that  criminal  intercourse  with  a  ma/ViW  woman,  which 
exposes  lier  hushatid  to  support  and  ])rovitie  for  another  man's 
issue.     *     *     * 

"  Let  us  next  take  up  Bacon's  Abridgment,  that  famous  reposi- 
tory of  the  common  law,  wlicrein  he  draws  the  distinction 
between  fornication  and  adultery  so  clearly  as  to  admit  of  no 
equivocation.  He  says:  Fornication  is  unlawful,  because  chil- 
dren are  begotten  without  any  care  for  their  education ;  but 
adulter]!  goes  fnriher,  it  entails  a  spurious  race  on  a  party  foi- 
whom  he  is  under  no  obligation  to  provide:"  Hac.  Ab.  Marriage 
and  Divorce,  569. 

"  This  is  the  circumstance  on  which  adultery  depends  at  the 
common  law — its  tendency  to  adulterate  the  issue  of  an  innocent 
husband,  and  to  turn  the  inheritance  away  from  his  own  blood 
to  that  of  a  stranger.  If  the  woman  be  single,  her  incontinence 
])rodu('es  noiu'  of  this  evil ;  her  issue  takes  away  no  man's 
inheritance;  it  can  be  heir  to  nobody,  and  the  burthen  of  its 
sup|)ort  is  cast  by  law  up(»n  herself  and  the  partner  of  her  guilt. 
*  *  *  I  will  barely  add  that  adultery,  at  the  <!ommon  law,  is 
limited  to  criminal  intercourse  with  a  married  woman,  both  by 
Swift  and  Reeve,  who  are  among  our  most  eminent  American 
commentators,  and  that  I  am  accjuainted  with  no  treatise  on  the 
common  law,  English  or  American,  to  the  c  trary.  Whether 
its  regulation  on  this  jioint  was  borrowed  at  soine  early  age  from 
the  Levitical  law,  which  the  early  dispersion  of  the  Jews  carried 
into  various  parts  of  Europe,  I  am  not  able  to  say ;  but  certain  it 
is,  that  this  wide  distinction  between  criminal  intercourse  with  a 
married  woman,  and  a  single  woman,  is  emphatically  settled  in 
the  Levitical  law,  the  former  being  punished  with  death,  while 
the  latter  was  only  a  fine.  8ee  Levlt.,  eh.  2!),  verse  10,  and 
J)eut.,  ch.  22,  verses  22  to  2S." 

TIjo  opinion  from  which  wo  have  extracted  was  pronounced 
by  Justice  Ford;  Chief  Justice  llornblower  adtled  :"  I  have 
prepared  an  opinion,  which  it  is  unnecessary  to  read,  according 
with  that  of  Justice  Ford." 

"This  (]uestion  has  never  before  been  dotcrinined  in  this  state, 
I  believe,  although  the  law  has,  over  since  the  year  1704,  pro- 
vided a  punishment  for  the  offense." 


HOOD  r.  STATK. 


175 


lluvin^,  ill  the  profj^ress  of  this  iiivesti<i;ati(»ii,  arrived  at  the 
voiit'hision,  as  we  have  before  stated,  that  the  Utah  divorce  was  a 
nullity,  it  follows  that  the  appellant  is  still  the  husband  of 
Maj^^ie  Ilorton  Hood;  that  his  j)reteiided  ](iiirria<i^e  with  Jane 
Chaiiey  was  also  a  nullity,  and  that  his  liviii<r  and  cohabiting 
with  her  was  the  livinj;  and  cohabitini!^  of  a  niarricMl  man  with 
ail  unnuirried  woiiiau,  which,  as  we  have  seen,  constitutes  the 
olTeiise  of  fornication,  the  otfense  for  which  ap])ellant  is  indicted 
and  prosecuted  in  the  cause  now  before  us. 

We  have  looked  through  the  proceedinpjs  on  the  trial,  and  they 
api)ear  to  us  to  have  been  conducted  with  fairncjss  and  legality. 
The  instructions  of  the  (^ourt  stated  tlie  law  with  at^curacy  to  the 
jury. 

It  is  claimed  in  the  brief  of  appellant's  counsel,  that  it  was  not 
jtroved  that  the  wife  of  appellant,  whose  maiden  name  was 
Maggie  llorton,  was  still  living.  The  record  discloses  that  the 
fact  was  proved.  It  s!.v)ws  that  she  was  present  in  court  during 
the  trial,  and  was  pointed  out  to  the  jury  by  a  witness  who  knew 
lier  as  the  wife  of  a{)pcl'ant. 

It  is  claimed  that  the  ccnirt  erred  in  permitting  evidence  of  a 
conversation  at  the  clerk's  office,  in  Kentucky,  where  Hood 
obtained  his  license  to  marry  Miss  (Miancy.  The  evidiMice  given 
touching  the  conversation  is  not  in  the  record,  and  it  may  have 
been  harmless. 

It  is  urged  that  appellant  did  not  intend  to  commit  a  crime. 
He  intended  to  perform  the  acts  Ik;  did  perform.  He  is  charge- 
able with  notice  of  legid  consequeiK^s. 

We  discover  no  error  in  the  record. 

The  judgment  is  affirmed,  with  costs. 

NoTH. — In  Peopit'  r.r  rd.  Voiiiinimon^rn  v.  Smitfi,  20  N.  Y.  Sup.  Ct.,  414, 
•wlilcli  WHS  a  proijcediiijj;  bcloro  a  jiolict*  jiiHlicc  in  N.  Y.,  for  iibiiudoiiing  bis 
wife  and  cliildrcii,  tlu;  di^fcnsc!  was  a  divorce  olitiiln(!il  in  Uliili,  of  Uu;  same 
ilmriictcr  us  Hint  in  tiui  principal  case.     Tiic  divorce!  was  licld  to  be  ii  nnlllty. 

In  Pfoplf  V.  Dninll,  25  Micli.,  24?,  which  whs  ii  prosecution  for  hijiainy,  the 
defense  was  an  Indiana  divorce.  Tlie  record  of  tlie  divorce  siiowed  tliiit  botli 
jiartius  appeared  in  the  case,  and  llial  the  complainant  was  a  resident  of 
Nolile  ccmnly,  Indiana,  wiiere  flic  divorce  was  uranted.  It  was  held  that,  tlie 
recitals  of  the  record  showing  jurlsdicticm  mitdit  be  conlradieted,  and  the 
prosecution  wtM-e  allowed  to  show,  in  rebuttal,  that,  at  tlu;  time  of  the  divorce 
bolli  parties  were  in  fact  residents  of  Miciiipui,  and  that  the  wife  liad  in  *'ct 
uo  knowledge  of  the  proceedings,  uud  bur  pretended  appearance  was  u  <*  Uk^d. 


1. 


i 


J  * 

m 


m 


AMERICAN  CRIMINAL  REPORTS. 


m 


State  v.  JMeff. 

(58  Ind.,  516.) 

Assault  and  Battery:    Authority  of  Superintendent  of  Poor  IIoum.. 

The  superintendent  of  a  county  poor  liouse  lins  a  rijrht  to  use  gentle  and 
moderate  jiliysicjal  coercion  toward  tlie  inmates  so  far  as  may  be  neces- 
sary for  tlu!  puipose  of  preserving  quiet  and  subordination  among  tlie 
innuites,  and  is  not  guilty  of  assault  and  battery  in  so  doing. 

NiBLACK,  J.  This  was  an  indictment  for  an  assault  and 
battery. 

Tlie  substantial  part  of  the  indictment  says: 

"  The  grand  jurors  for  Hoone  county,  in  the  state  of  Indiana, 
*  *  *  *  present,  that  John  NefT,  on  the  1st  day  of  January, 
A.  D.  1877,  at  the  county  and  state  aforesaid,  did  then  and  there 
in  a  rude,  insolent  and  angry  manner,  unhnvfully  touch,  strike, 
beat,  bruise  and  wound  one  Elizabetli  Wyatt." 

The  defendant  pleaded  specially  to  the  indictment,  as  follows: 

"Comes  now  the  defendant,  and  for  special  plea  herein  says 
actio  non,  because,  he  says,  that  at  the  time  and  place  of  the 
alleged  assault  and  battery  mentioned  in  tlie  indictment,  he  w;is 
the  legally  appointed  custodian  and  superintendent  of  the  county 
asylum  for  the  indigent  and  poor  of  said  county  of  Boone,  and 
that  the  said  Elizabeth  Wyatt,  the  person  upon  whom  said  pro- 
tended assault  and  battery  is  charged  to  have  been  perpetrated, 
was,  at  the  time  and  place  mentioned,  a  pauper  and  an  inmate  <»f 
the  aforesaid  county  asylum,  duly  and  legally  admitted  therein, 
and  under  the  care  and  custody  of  the  defendant,  and  as  such 
custodian  and  superintendent  of  said  county  asylum ;  that  the 
said  Elizabeth  Wyatt,  at  the  time  of  the  alleged  pe^-petratioii  of 
the  assault  and  battery  charged  in  the  ind'ctment,  was  cross,  stul)- 
bom,  ill,  disobedient  and  ungovernable,  and  was  fighting  and 
scolding  other  paupers  and  inmates  of  said  asylum,  and  that  the 
beating  and  striking  alleged  in  the  complaint  was  simply  moder- 
ate and  gentle  coercion,  administered  to  and  upon  her  by  tho 
defendant,  as  tho  custodian  and  superintendent  of  the  county 
aaylnm  aforesaid,  without  anger,  insolence  of  rudeness  upon  the 
part  of  tho  defendant,  but  for  the  purpose  of  preserving  quiet 
and  subordination  among  the  inmates  of  said  asylum,  as  ho  law- 
fully had  the  right  to  do,  ami  no  more." 


KOLBE  V.  PEOPLE. 


1?7 


The  prosecuting  attorney  demurred  to  this  plea  for  want  of 
sufficient  facts  to  constitute  a  defense.  The  court  overruled  the 
demurrer,  and  rendered  judgment  discharging  the  defendant. 

The  state  brings  the  cause  into  this  court  by  appeal  on  the 
question  of  law  involved  in  the  overruling  of  the  demurrer  to 
the  ])lea. 

Bickiiell,  in  his  Criminal  Practice,  page  296,  in  summing  up 
well  established  defenses  to  charges  of  assault  and  battery,  says : 

"  It  is  a  good  defense  that  the  battery  was  merely  the  chastise- 
ment of  a  child  ])y  its  parent,  the  correcting  of  an  apprentice  or 
scholar  by  the  master,  or  the  punishment  of  a  criminal  by  the 
proper  officer;  provided  the  chastisement  be  moderate  in  the 
manner,  the  instrument,  and  the  quantity  of  it,  or  that  tne  crimi- 
nal be  punished  in  the  manner  appointed  by  law :  Butler's  N. 
P.,  12."  See,  also,  Pomeroy's  Notes  to  1  Archbold  Criminal 
Law,  8th  ed.,  p.  923;  Wharton  Criminal  Law,  sec.  1259. 

The  same  rule  applies,  substantially,  to  keepers  of  almshouses 
and  asylums  for  the  poor,  so  far  as  necessary  to  preserve  order 
and  to  enforce  proper  discipline  in  their  establishments :  State 
V.  Hull,  34  Conn.,  132;  Forde  v.  Skinner,  4  Car.  and  P.,  494; 
lieg'ma  v.  Mereer,  6  Jurist,  243. 

The  facts  set  up  in  the  plea,  wo  think,  were  sufficient  as  a 
defense  to  the  indictment.  The  prosecuting  attorney,  by  demur- 
ring to  the  plea  instead  of  taking  issue  upon  it,  admitted  the 
truth  of  the  facts  thus  set  up.  We  see  no  error  in  the  ruling  of 
the  court  on  the  demurrer. 

The  judgment  is  affirmed. 


\i- 


\i* 


'!( 


KoLBE  V.  People. 

(85  111.,  83G.) 

Bahtakdt  :    Security  for  costs  —  Non-re»ident  prosecutrix. 

The  statute  of  Illinois  requiring  a  non-rcsidcnt  plaintiff  to  give  a  bond  for 
costs  docs  not  apply  to  busturily  proceedings. 

Although  the  complainant  in  a  bti.sturdy  ease  is  not  and  never  hna  been  a  resi- 
dent of  the  state,  and  the  child  was  begotten  in  another  state,  yet  when 
the  mother,  irhik  prci/iKint,  cornea  into  the  state  ami  institutes  proceed- 
ings against  the  putative  father  in  thecoimty  where  he  is  found,  her  non- 
residence  is  no  bar  to  tlie  proceedings. 

DioKEY,  J.     This  is  a  proceeding  under  our  statute  on  the 
subject  of  bastardy.     The  child  was  begotten  in  Missouri,  where 
Vol.  II.— 13 


I 


T 


I*' 

-  *  I* 

if! 


ii 


''i 


AMERICAN  CRIMINAL  REPORTS. 

the  complainant  and  tlie  putative  father  then  resided.  When  near 
the  time  of  the  coiilineraent  of  the  mother,  the  putative  father 
removed  to  the  state  of  Illinois.  The  mother,  while  pregnant, 
came  into  the  state  of  Illinois,  and  into  the  county  where  the 
putative  father  was  found,  and  instituted  the  proceedings  before 
a  justice  of  the  peace  of  that  county.  The  case  came  in  regular 
course  before  the  circuit  court,  where  judgment  was  rendered 
against  the  putative  father.     He  appeals  to  this  court. 

Appellant  insists  that  the  circuit  court  erred  in  refusing  to  dis- 
miss the  proceeding  for  want  of  bond  for  costs.  Tlie  statute 
requiring  bond  for  costs  is  not  applicable  to  a  proceeding  of  this 
kind,  and  if  it  were,  the  application,  not  having  been  made 
before  tlie  justice  of  the  peace,  comes  too  late.  The  ruling  was 
right. 

A  graver  question  is  presented  by  the  objection  that  the  com- 
plainant was  not  a  resident  of  the  state  of  Illinois,  and  never  has 
been.  It  is  strenuously  insisted  that  this  statute  was  enacted  in 
the  interest  of  the  public,  and  for  the  protection  of  the  proper 
county  against  its  liability  to  the  expense  of  maintaining  the 
child  as  a  pauper. 

The  language  of  the  statute  is  broad,  and  contains  no  express 
limitation  of  the  kind  insisted  upon.  The  case  is  certainly 
within  the  letter  of  the  law.  The  majority  of  the  court  do  not 
feel  at  liberty  to  hold  that  the  operation  of  the  statute  is  limited 
in  this  respect  by  such  implication.  While  the  statute  is  in  the 
interest  of  the  public,  in  some  respects,  still  the  main  purpose  of 
the  statute  seems  to  be  to  compel  the  father  of  a  bastard  child  to 
bear  part  of  the  burden  of  its  support.  In  this,  the  mother  is 
chiefly  interested. 

We  think  the  proceeding  as  it  is  was  authorized  by  the  statute. 
The  judgment  is,  therefore,  affirmed. 

Judgment  affirmed. 


Hawkins  v.  Peoplb, 

(82  111.,  103.) 

Babtardt:    Evidence —Appeal — Ifon-abatemcnt  qf  proeeeding$  by  death  of 

bastard. 

An  objection  that  there  was  no  evidence  that  the  bastard  was  born  or  begotten 
in  the  state  of  Illinois,  made  for  the  first  time  in  the  Supreme  Court, 
comes  too  late. 


HAWKINS  V.  PEOPLE. 


179 


An  appeal  lies  in  bastardy  cases  from  the  county  to  the  circuit  court,  at  the 

suit  of  the  prosecuting  witness. 
Proceedings  in  a  bastardy  case  are  not  abated  by  the  death  of  the  child,  where 

the  child  was  living  at  the  time  the  proceedings  were  instituted. 

Craig,  J.  This  is  an  appeal  from  a  judgment  rendered  in  the 
circuit  court  of  Madison  county,  in  a  proceeding  originally  insti- 
tuted before  a  justice  of  the  peace,  against  appellant,  under  the 
bastardy  act  of  the  state. 

It  is  first  urged  that  tlie  evidence  fails  to  show  that  the  child 
was  born  or  begotten  in  the  state  of  Illinois. 

The  first  section  of  the  bastardy  act  authorizes  the  prosecution 
to  be  commenced  in'  the  county  where  the  woman  may  be  preg- 
nant or  delivered,  or  where  the  person  accused  may  be  found : 
Eevised  Laws  of  1874,  p.  183. 

The  complaint  was  made  before  a  justice  of  Madison  oounty, 
in  which  it  is  charged  that  appellant,  of  said  coimty,  is  the  father 
of  the  child.  The  return  upon  the  warrant  shows  that  appellant 
was  found  in  the  county. 

These  facts  are  sufficient  to  give  the  court  jurisdiction,  and 
while  the  proof  upon  the  formal  question  where  the  child  was 
begotten  or  born,  or  where  appellant  was  found,  was  not  fully 
called  out  before  the  jury,  yet,  in  the  absence  of  any  question 
being  raised  in  the  circuit  court  upon  the  sufficiency  of  the  proof 
upon  this  point,  we  must  hold  that  the  objection,  for  the  first 
time  raised  in  this  court,  comes  too  late :  Cook  v.  The  People, 
51  111.,  lU. 

The  county  court,  before  whom  the  appellant  had  been  recog- 
nized to  appear  by  the  justice  of  the  peace,  dismissed  the  pro- 
ceeding, from  which  judgment  an  appeal  was  taken  to  the  cir- 
cuit court  by  the  prosecuting  witness. 

It  is  said  no  appeal  could  be  taken  from  this  order  of  the 
county  court.  The  reason  for  this,  however,  is  not  apparent. 
The  judgment  of  the  county  court  was  final.  It  terminated  the 
litigation  between  the  parties,  and  we  perceive  no  greater  reap.)U 
for  holding  that  an  appeal  would  not  lie  from  a  judgment  of  this 
character  than  from  a  final  judgment  in  any  other  case.  But  it 
is  contended  it  Wiis  the  duty  of  the  circuit  court  to  either  affirm 
the  decision  of  the  county  court,  or  to  reverse  and  remand. 

This  question,  however,  was  settled  in  llolcoiitb  v.  llie  People, 
79  111.,  409,  where  it  was  expressly  held,  that  in  a  case  of  this 


:1 
i'V 


180 


AMERICAN  CMMINAL  REPORTS. 


character,  an  appeal  could  be  taken  to  the  circuit  court,  and  a 
trial  de  novo  be  there  had. 

As  the  decision  cited  is  conclusive  of  the  question  presented, 
further  discussion  of  the  point  is  not  deemed  necessary  or  impor- 
tant. 

The  main  question,  however,  relied  upon  by  appellant  ta 
reverse  tlie  judgment  is,  that  the  death  of  the  bastard  child, 
before  verdict,  abated  the  prosecution. 

It  appears,  from  the  record,  that  the  child  was  born  on  the 
20th  day  of  February,  1874,  and  died  January  9th,  1876.  The 
suit  was  commenced  September  11th,  1875,  but  the  trial  and  ren- 
dition of  judgment  occurred  at  the  March  term,  1876. 

Upon  the  trial  of  the  issue  the  jury  returned  a  verdict  that 
appellant  was  the  father  of  the  bastard  child,  upon  which  the 
court  entered  an  order  requiring  him  to  pay  $100  for  the  first 
year  after  the  birth  of  the  child,  and  $40  for  the  second  year ; 
also,  that  appellant  enter  into  bond,  with  security,  for  the  pay- 
ment of  the  money,  and  upon  the  payment  of  tlie  sum  of  $140 
and  costs  of  prosecution,  the  defendant  be  discharged  from  fur- 
ther liability. 

The  eighth  section  of  chapter  17,  revision  of  1874,  provides 
that,  whore  the  issue  shall  be  found  by  the  jury,  against  tlie 
defendant,  he  shall  be  required,  by  the  judgment  of  the  court,  to 
pay  $100  for  the  first  year  after  the  birth  of  the  child,  and  $50 
yearly  for  nine  years  succeeding  said  first  year,  and  secure  tlic 
payment  of  the  money  by  bond,  with  security. 

This  section  of  the  act  makes  no  provision  for  an  abatement  of 
the  action,  for  any  cause,  but  it  is  claimed  section  14  does.  That 
section  declares:  "If  the  child  should  never  be  born  alive,  or, 
being  born  alive,  should  die  at  any  time,  and  the  fact  shall  bo 
suggested  upon  the  record  of  the  said  court,  then  the  bond  afore- 
said shall  from  thenceforth  be  void." 

It  is  clear  that,  if  a  prosecution  was  commenced  before  birth, 
and  the  child  should  not  be  born  alive,  the  action  would  abate, 
and  no  judgment  could  be  rendered  against  the  defendant,  except 
it  might  be  for  costs ;  but  such  is  not  this  case. 

That  portion  of  the  section  which  relates  to  a  case  where  a 
child  should  be  born  alive,  and  subsequently  die,  does  not  profess 
to  regulate  or  make  any  provision  in  regard  to  the  money  which 
has  accrued  between  the  birth  and  death  of  the  child. 

The  bond  referred  to  in  the  section  evidently  means  the  bond 


HAWKINS  0.  PEOPLE. 


181 


required  to  be  given  under  section  eight,  and  the  clanse  that  it 
*•  shall  from  henceforth  be  void."  no  doabt  was  intended  to 
relate  solely  to  the  payment  of  such  sum  of  money  as  would 
l»t'<-ome  due,  under  the  order  of  the  court,  after  the  death  of  the 


vMUl 


If  we  are  correct  in  this,  then  the  section  does  not  embrace  a 
case  like  the  one  under  consideration,  nor  have  we  found  any 
jiecfioii  of  the  act  whicli,  by  a  fair  or  reasonable  construction,  will 
j)i-even(  a  ;eco very  in  a  case  like  this. 

It  lias  been  urged  on  behalf  of  appellant  that,  after  the  death 
o{  the  child,  the  state  no  longer  had  an  interest  in  the.  prosecu- 
tion of  the  action.  This  may  be  true,  and  yet  not  affect  the 
principle  involved. 

It  has  been  well  settled  in  this  state,  that  an  action  of  this 
•cliiiracter  is  of  a  civil,  and  not  of  a  criminal  nature,  and  the 
mother  of  the  child  has  an  interest  therein  as  well  as  the  people : 
Xann  v.  The  People,  35  III.,  407;  Pease  v.  Hubbard,  37 
lb.,  257. 

In  the  case  last  cited,  which  was  an  action  by  a  mother  of  a 
bai*tard  child,  against  an  officer,  for  permitting  a  defendant,  who 
had  been  arrested  on  a  bastardy  warrant,  to  escape,  it  was  said : 
"  Although  it  is  a  proceeding  in  the  name  of  the  people,  yet  the 
object  is  not  the  imposition  of  a  penalty  for  an  immoral  act,  but 
merely  to  compel  the  putative  father  to  provide  for  the  support 
•of  his  offspring.  In  the  event  of  his  failure  to  perform  this 
duty,  it  devolves  upon  the  mother,  and,  in  case  of  her  inability, 
the  child  becomes  a  public  charge,  as  a  pauper.  The  plaintiff 
was  clearly  injured  by  the  negligence  of  the  defendant,  because 
«lie  is  left  liable  to  a  burden  from  which  it  was  the  duty  of  the 
esc'iiped  prisoner  to  relieve  her." 

The  principle  announced  applies  with  peculiar  force  here. 
The  foundation  of  the  action  is  not  to  punish  a  defendant  for  an 
iimiioral  or  unlawful  act,  but  to  compel  a  father  to  contribute  to 
the  su])port  of  his  offspring. 

During  the  two  years  the  child  was  living,  its  care,  custody 
aii<l  maintenance  devolved  upon  the  mother.  Her  action  was 
peiuling  to  coiiipol  the  father  to  perform  a  duty  the  statute  had 
imposed  upon  him.  Had  the  child  survived,  it  is  not  pretended 
but  the  money  the  court  required  the  defendant  to  pay  would 
have  gone  to  the  mother  to  re-imburse  her  for  advances  made  dur- 
ing those  two  years  she  kept  the  child.    In  what  manner  the 


\ 


182 


AMERICAN  CULVIIXAL  REPORTS. 


.IP 
1  v,< 


m 


n, 


I 


<    "il- 

^  'IIP 

'  :  It: 

death  of  tlio  child  could  change  rights  that  had  accrued  aiid 
become  fixed,  it  is  difficult  to  perceive. 

The  statute  required  the  defendant  to  pay  a  certain  amount, 
for  a  certain  number  of  years,  for  the  purpose  of  supporting  the 
child.  The  fact  that  the  money  had  not  been  collected  for  the 
time  the  child  had  lived  did  not,  upon  the  death  of  the  child, 
abate  the  action,  or  in  any  maimer  release  the  defendant  from  hia 
liability  for  the  support  during  the  life  of  the  child.  This  waa 
the  view  taken  of  the  case  by  the  circuit  court,  and  it  was  correct. 

The  judgment  will  be  affirmed. 

Judgment  affirmed. 


"Wilson  v.  State. 


(57  Ind.,  71.) 

Contempt:    Return  of  service  —  Gonclusmnesa  of  answer  under  oath  by 

res])ondent. 

The  return  of  an  officer  showing  an  attempted  service  of  a  subpoena  on  a 
witness,  which  could  not  be  completed  by  reason  of  the  witness  running 
away,  is  a  sutHcient  basis  for  the  issuini^  of  an  attachment  against  the 
witness  for  his  failure  to  appear  in  ol)edience  to  the  subpoena. 

An  attachment  for  a  contempt  in  disobeying,  a  subpiona  having  been  served, 
the  defendant  filed  a  written  statement  under  oath  denying  the  facts  con- 
stituting the  alleged  contempt,  and  disclaiming  any  intention  of  disoltey- 
ing  the  process  of  the  court.  Held,  that  the  answer  of  the  respondent 
was  conclusive,  and  that  it  was  error  to  subject  the  respondent  to  an  oral 
examination  or  to  hear  evidence  aliunde  for  the  purpose  of  disproving  the 
statement  and  establiHhing  the  alleged  contempt. 

NiBLAOK,  J.  On  the  29th  day  of  March,  1879,  which  Wiw 
during  a  regular  term  of  the  court  below,  a  summons  was  issued 
for  the  appellant,  requiring  him  to  ap))ear  and  testify  as  a  wit- 
ness before  the  grand  jury  of  Hancock  county,  which  was  then 
in  session,  and  was  delivered  to  an  acting  deputy-sheriff  of  said 
county,  who  in  the  name  of  the  proper  sheriff  returned  the  sum- 
mons indorsed,  "  Served  by  telling  defendant  tluit  I  had  a  sul)- 
poena  for  him  for  to-day,  and  defendant  run,  and  kept  out  of 
my  reach,  so  that  I  could  not  read  to  him." 

Upon  the  return  of  the  summons,  an  attachment  was  issued 
against  the  appellant  for  an  alleged  contempt  of  court  in  disobey- 
ing its  process,  and  ho  was  arrested  and  brought  into  court  on 
the  attachment. 


WrLS(:>N  V.  STATE. 


When  the  attachment  was  returned,  the  appellant  moved  the 
court  to  (puish  the  writ,  and  to  discharge  him  from  custody, 
hecause  no  affidavit  had  been  filed  against  him.  alleging  any  con- 
tempt of  court  on  which  to  base  an  attachment. 

That  motion  was  overruled,  to  wliich  the  appellant  excepted. 
The  appellant  then,  for  the  purpose  of  purging  himself  of  the 
contempt  witii  which  he  was  charg(?d,  filed  a  statement  in  writing, 
under  oath,  giving  a  dift'erent  version  of  what  occurred  when  the 
officer  attempted  to  serve  the  summons  on  him,  and,  in  substance 
and  in  legal  effect,  denying  the  charge  against  him,  contained  in 
the  sheriffs  return  to  the  summons,  and  particularly  any  inten- 
tion of  disobeying  the  process  of  the  court. 

After  the  appellant  had  thus  answered  in  writing,  the  court, 
over  his  obje(!tion,  compelled  him  to  answer  orally  numerous 
(piestions  propounded  by  the  court  concerning  such  alleged  con- 
tempt, to  which  the  appellant  also  excepted,  and,  after  so  examin- 
ing him  orally,  the  court  adjudged  him  guilty  of  the  contempt 
charged  against  him,  and  assessed  a  fine  against  him  of  twenty 
dollars,  foi*  which  a  judgment  was  rendered,  with  costs  of  suit. 

The  action  of  the  court  below,  in  overruling  the  motion  to 
quash  the  attachment  aiid  to  discharge  the  appellant,  is  assigned 
for  error  here. 

This  being  a  proceeding  to  punish  the  appellant  for  a  construc- 
tive contempt,  and  being  in  the  nature  of  a  criminal  proceeding, 
the  case  of  Whittem  v.  The  State^  36  Ind.,  196,  is  relied  on  as 
authority  that  an  affidavit  ought  to  have  been  filed  against  the 
appellant  before  the  attachment  was  issued. 

It  was  said  in  that  citse  that  "  the  proceeding  against  a  party 
for  a  constructive  contempt  must  be  commenced  by  either  a  rule 
to  show  cause,  or  by  an  attachment,  and  such  rule  should  not  be 
made  or  attatihment  issued  unless  upon  affidavit  specifically 
making  the  charge." 

We  think  the  rule  thus  laid  down  is  the  correct  one  as  applied 
to  the  class  of  constructive  contempt  to  which  that  case  belonged, 
hut  this  court,  in  commenting  on  that  case  in  a  subsetpient 
opinion,  said  that  the  "  ruling  in  that  case  in  no  manner  changes 
the  rules  of  law  and  practice  as  to  attaching  witnesses  for  a 
failure  to  obey  the  proc  •  ;s  of  the  court :"  Outh'r  v.  The  State^ 
42  Ind.,  246. 

The  return  of  the  sheriff  in  this  case  supplied  the  place  of  an 


i  -W 


I 


184 


AMERICAN  CRIMINAL  REPORTS. 


1^  .1 


'.  \'n,;, 


affidavit,  and  we  think  laid  a  sufficient  foundation  for  either  a 
rule  or  an  attacliment. 

The  action  of  the  court  in  requiring  the  appellant  to  answer 
questions  orally,  after  he  had  answered  in  writing,  under  oatli,  is 
also  assigned  for  error  in  this  court. 

The  practice  in  this  state  has  not  been  strictly  uniform  in  the 
method  of  proceeding  against  the  party  charged  upon  the  return 
of  an  attachment  for  a  contempt  of  court. 

Our  courts,  in  some  instances,  have  followed  the  old  chaiicory 
practice,  by  hearing  evidence  in  support,  as  well  as  in  denial,  of 
the  defendant's  answer,  and  then  deciding  the  case  on  the  defend- 
ant's answer,  in  connection  with  such  other  evidence.  In  other 
cases,  it  has  been  held  that  the  court  must  decide  the  case  on  the 
defendant's  answer  to  the  attachment,  when  he  hius  fully 
answered  all  the  charges  against  him :  The  State  v.  Earl,  41 
Ind.,  464. 

In  the  case  of  Burke  v.  The  State,  47  Ind.,  528,  the  rule 
governing  proceedings  in  such  cases  was  fully  considered.  It 
was,  in  substance,  decided  in  that  case  that,  where  a  person 
charged  with  a  constructive  contempt,  in  procuring  a  witness  to 
abse'.it  himself,  appears,  and  in  answer  to  a  rule  makes  a  state- 
ment, under  oath,  that  the  matters  in  the  affidavit  against  him 
are  not  true,  and  sets  up  a  state  of  facts  consistent  with  his  inno- 
cence, and  that  there  was  no  intention  on  his  part  to  interfere 
with  the  process  of  the  court,  he  should  be  discharged,  and  it  is 
error  for  the  (!Ourt  to  proceed  to  liear  evidence  of  the  truth  of 
the  original  affidavit  and  tlie  falsity  of  tlie  answer. 

The  rule  thus  laid  down  is  well  sustained  by  authority,  and  is, 
in  our  opinion,  applicable  to  the  case  at  bar. 

lT])on  the  authority  of  that  case,  the  judgment  below  will  have 
to  bo  reversed. 

The  ji  Iginent  is  reversed,  and  the  cause  remanded  for  further 
procoodi'.gs,  in  accordance  with  this  opinion. 


-•  i 


Knott  r.  Pkopm;. 

m  III.,  5:t2.) 

Contempt:    Protection,  of  re i)U' rial  property  —  PraettM. 

Certnin  proporty  hiivtni^  boon  replovlod  wlillo  (ho  suit  was  yot  pondinB,  tlio 
dofontliiut  in  replovia  Umk  llio  pioiuTly  out  of  tlio  possosHiuM  of  llio 
pliiiulill  in  roplovlii,  unit  piiiccil  il  Itoyoml  itis  much  and  of  tlio  ulUcurH  of 


\H-\ 


KNOTT  iJ.  PEOPLE. 


WB- 


the  Itiw.  Jfrld,  that  the  court  had  power  to  order  the  property  to  he 
restored  to  thr-  plaintiff,  and  to  enforce  the  order  in  ease  of  its  disobe- 
dience by  attacliment  for  contempt. 
The  respondent  in  an  attachment  for  contempt  having  been  heard,  cUd  his 
recognizance  i;ivin  n  appear  on  a  future  day  to  abide  the  judgment  of 
the  court  then  to  be  delivered,  cannot  on  that  day  file  new  affidavits  and 
dispute  the  propriety  of  tlie  rule  which  he  has  disobeyed. 

Brkksk,  J.  On  Januaiy  4,  1876,  Loren  Love  executed  and 
delivered  to  .Tolin  Knott  and  Mary  Knott  a  chattel  mortgage 
upon  certain  articles  of  property  therein  described,  to  secure  the 
payment  of  certain  notes  therein  specified,  which  mortgage  con- 
tained the  usual  stipulations  for  taking  possession  and  selling  by 
the  tnortgagees  on  certain  contingencies.  Some  one  or  more  of  the 
contingencies  Ihaving  occurred,  as  the  mortgagees  believed,  they 
caused  some  of  the  property  to  be  seized,  and  advertised  t^«) 
same  for  sale  to  satisfy  the  indebtedness.  About  the  25th  or 
Fei)ruary,  1870,  the  mortgagor.  Love,  instituted  an  action  of 
replevin  before  a  justice  of  the  peace,  to  regain  the  possession  of 
the  property,  and  it  was  delivered  to  him  under  the  writ  of 
replevin.  On  the  trial  before  the  justice  of  the  peace,  had  on 
the  first  day  of  March,  1876,  the  magistrate  dismissed  the  suit 
for  want  of  jurisdiction.  From  this  judgment  the  plaintiff 
prayed  an  ap])eal,  and  perfected  the  same  on  March  .3,  1876. 

On  the  morning  of  the  2d  day  of  March,  appellant,  with  the 
aid  of  one  Jolm  Fogarty,  again  seized  the  property,  took  it  out 
of  the  possession  of  Love,  and  disposed  of  it  in  such  manner  as 
to  place  it  beyond  the  reach  of  Love,  or  of  the  officers  of  the 
law.  The  replevin  suit  being  taken  to  the  circuit  court  by  plain- 
tiffs appeal,  ho,  on  the  4th  day  of  March,  moved  the  court  for  a 
rule  ui)on  Fogarty  and  Knott,  to  show  cause,  by  the  6th  day, 
why  they  should  not  return  to  the  plaintiff  the  property  so 
eeizcd,  which  rule  was  duly  served  on  the  parties.  No  cause 
hnving  boeti  shown  by  Fogarty,  the  court,  on  the  7th  of  March, 
ordered  that  l"'<»garty  restore  the  property  to  Love  by  Thursday 
morning,  March  !Hh,  or  in  default  thereof,  that  lie  be  attached 
for  cont(Miipt.  The  order,  as  against  Knott,  was  extended  to 
Friday.  Marcih  luth.  On  that  day  Fogarty  and  Knott  appeared 
and  entered  a  motion  to  vacate  and  set  aside  the  orders  thereto- 
fore made.  In  support  of  and  against  the  same,  affidavits  wore 
read,  atui  the  jtiotion  denied,  and  thereupon  an  order  was  ent(!rod 
retjuiring  Knott  to  restore  the   property  to  the  plaintiff,  Love, 


u 


If   I' 


n 

it    !■ 


ill 

M 


AMERICAN  CRIMINAL  REPORTS. 


i?'r 


W 


'mm'' 


ft:; 


before  Monday  morning  next,  March  13tli,  and  Fogarty  do  the 
same  or  show  cause,  by  tlie  same  day,  why  he  should  not  be 
attached  for  contempt  of  court.  On  March  13th,  on  plaintiff's 
motion,  the  defendant  Knott  was  ruled  to  show  cause  by  the 
next  day,  the  llth,  why  he  should  not  be  attached  for  contempt, 
in  disobeying  the  peremptory  rule  upon  him  to  restore  the  prop- 
erty. On  a  further  extension  of  the  rule  to  the  16th,  Fogarty 
and  Knott  were  required,  while  the  court  advised  in  the  prem- 
ises, to  enter  into  recognizances  to  appear  on  the  20th,  to  hear 
and  abide  the  judgment  of  the  court  in  the  premises. 

On  the  20th,  the  defendant  filed  certain  affidavits,  which,  on 
■  motion  by  plaintiff,  the  court  ordered  to  be  stricken  from  the 
files,  and  it  then  and  there  appearing  to  the  court  that  neither  of 
the  defendants  had  complied  with  the  order  of  the  court,  by 
restoring  the  property  to  the  plaintiff  Love,  the  court  thereupon 
caused  the  defendants  to  be  arraigned  at  the  bar  of  the  court, 
and  they  having  failed  to  show  any  cause  why  they  had  not 
complied  with  the  order  of  the  court  in  the  premises,  it  was 
thereupon  ordered  that  the  defendants  Fogarty  and  Knott  be 
committed  to  tbo  county  jail  for  the  period  of  twenty  days,  and 
that  each  pay  n  fine  of  ten  dollars  and  the  costs  of  the  proceed- 
ings, and  that  they  stand  committed  until  the  fine  and  costs  were 
paid. 

To  this  order  Knott  excepted,  and  prayed  an  appeal  to  this 
court,  which  was  granted. 

The  affidavits  filed  on  the  20th  were  not  in  order,  for  ai)pellaiit 
had  entered  into  a  recognizance  to  appear  on  that  day  to  hear 
and  abide  the  judgment  of  the  court  in  the  premises,  the  proofn 
having  been  taken  and  closed.  Appellant  then  stood  before  the 
court  as  in  contempt  of  an  order  which  the  court  had  a  right  to 
enter.  The  proofs  satisfactorily  show,  while  the  action  of 
replevin  was  pending,  appellant,  in  defiance  of  that  fact,  and  in 
contempt  of  the  law;  took  the  property  out  of  the  possession  of 
the  replevisor,  and  placed  the  same  beyond  the  reach  of  the  law, 
proceedings  then  pending  in  which  his  right  so  to  do  wa* 
involved,  the  result  of  which  he,  as  a  law  abiding  citizen,  should 
have  patiently  awaited. 

We  do  not  see,  under  the  circumstances,  that  the  judgment  of 
the  court  was  improper,  or  more  severe  than  the  nature  of  tlio 
case  demanded.  The  citizen  must  respect  the  law,  and  obey  the 
lawful  mandates  of  a  court  having  competent  jurisdiction  of  the 


rip 


BUCIIMAN  v.  STATE. 


187 


sabject,  otherwise  anarchy  and  lawlessness  will  prevail  to  such 
an  extent,  if  not  checked,  as  to  destroy  all  government. 

The  judgment  must  he  affirmed. 


BucnMAN  V.  State. 


(59  Ind.,  1.) 
Etidencb:    Expert  mtnessea  —  Right  to  extra  compensation  —  Contempt. 

A  physician  cannot  lawfvilly  be  compelled  to  testify  as  an  expert  to  matters 
of  medical  science,  against  his  objection,  unless  compensated  by  a  proper 
fee,  as  for  a  professional  opinion;  and  his  refusal  to  testify  as  to  matters 
of  medical  science,  without  such  compensation,  cannot  be  punished  as  a 
contempt. 

BiDDLE,  C.  J.,  and  Niblack,  J.,  dissenting. 

WoRDEN,  J.  One  Hamilton  was  on  trial  in  the  court  below, 
on  an  indictment  charging  him  with  the  commission  of  rape. 
On  the  trial  he  put  upon  the  stand,  as  a  witness,  the  appellant 
herein.  Dr.  Buchman,  who  testified  as  follows  upon  questions 
propounded  as  we  suppose,  viz. : 

"My  name  is  A.  A.  Buchman  ;  I  am  a  practicing  physician ;  I 
have  resided  in  Fort  Wayne  for  two  years ;  graduated  at  the  Col- 
lege of  Medicine  and  Surgery  of  Cincinnati,  Ohio,  in  1870,  and 
have  practiced  since  that  time. 

"  Ques.  State  to  the  jury  whether  or  not,  in  female  menstru- 
ation, there  is  sometimes  a  partial  retention  of  the  menses  after 
the  main  flow  has  ceased. 

"  Ans.  I  refuse  to  answer  the  question,  unless  I  am  reasonably 
compensated  for  it,  before  testifying  as  a  medical  expert ;  I  do 
this  with  all  respect  to  the  court. 

"Ques.  What  is  your  opinion,  in  case  of  menstruation  in 
females,  as  to  the  menstrual  flow  changing  in  color,  gradually, 
from  red  or  dark,  to  a  lighter  color? 

"  Ans.  The  answer  that  I  would  have  to  give  would  depend 
upon  my  professioiuil  knowledge  of  the  subject,  and  I  respect- 

NoTK. — The  Supromo  Court  of  Alabutun,  ns  noted  in  the  opinion,  has 
decided  precisely  the  reverse  of  this  in  Ex  parte  Dt3inent,  58  Ala.,  889.  For 
the  dissenting  opinion  of  Hiddle,  C.  J.,  in  which  Niblack,  J.,  concurred,  see 
Dill  11,  dttite,  59  Ind.,  IS,  where  it  is  reported  in  full. 


If 


'I 


t 


™! 


m 


AMERICAN  CRIMINAL  REPORTS. 


fully  refuse  to  give  ray  professional  opinion  without  being  com- 
pensated. 

"  Ques.  To  whom  do  you  look  for  pay  ? 

*'  Ans.  I  expect  the  party  calling  me  shall  compensate  me,  or 
that  the  court  shall  provide  some  means  of  compensation." 

The  court  being  of  opinion  that  the  witness  was  required  by 
law  to  answer  the  question  without  compensation  other  than 
ordinary  witness  fees,  and  the  witness  persisting  in  his  refusal  to 
answer,  he  was  committed  as  for  contempt.  From  the  commit- 
ment the  witness  appeals  to  this  court. 

The  question  presented  being  a  novel  one  in  Indiana,  so  far  as 
we  are  advised,  and  an  important  one,  we  have  bestowc  such 
time  and  care  upon  its  conaideration  as  its  importance  seemed  to 
require. 

It  must  be,  and  is  conceded,  that  a  physician  or  surgeon,  when 
called  upon,  must  attend,  and  testify  to  facts  within  his  knowl- 
edge, for  the  same  compensation,  in  the  way  of  fees,  as  any  other 
witness. 

In  respect  to  facts  within  his  knowledge,  he  stands  upon  an 
equality,  in  reference  to  compensation,  with  all  other  witnesses. 
But  the  question  presented  is,  whether  he  can  be  compelled  to 
give  a  professional  opinion,  without  compensation,  otlier  than 
the  ordinary  fees  of  witnesses. 

In  England  there  is  some  diversity  in  the  decisions  in  respect 
to  the  question,  whether  an  attorney  or  medical  man  is  entitled 
to  higlier  compensation  for  attendance  as  a  witness  tiian  ordinary 
witnesses.  This  diversity,  however,  relates  to  witnesses  required 
to  testify  to  facts,  .and  not  to  give  professional  opinions.  In 
respect  to  professional  opinions,  we  are  not  aware  of  any  diver- 
sity of  decision. 

In  note  two  to  sec.  310,  1  Greenl.  Ev.,  13th  ed.,  it  is  said  that 
"an  additional  compensation,  for  loss  of  time,  was  formerly 
allowed  to  medical  men  and  attorneys;  but  tliat  rule  is  now 
exploded."  But  a  reasonable  compensation  paid  to  a  foreign  wit- 
ness, who  refused  to  come  without  it,  and  whoso  attendance  was 
essential  in  the  cause,  will  in  general  be  allowed  and  taxed 
against  the  losing  party.  See  Lonergan,  v.  The  lioijal  hlv.chang*' 
AiisumHoe,  7  Hijig.,  725 ;  S.  C,  Id.,  729 ;  Collim  v.  Go</efr<v/, 
1  B.  and  Ad.,  050. 

There  is  also  a  distinction  between  a  witness  to  facts  and  a 
witness  selected  by  a  party  to  give  his  opinion  on  a  subject  with 


:  m 


m 


BUCHMAN  r.  STATE. 


189 


wliicli  he  is  peculiarly  conversant  from  his  employment  in  life. 
The  former  is  bound,  as  a  matter  of  public  duty,  to  testify  to 
facts  within  his  knowledge.  The  latter  is  under  no  such  obliga- 
tion; and  the  party  who  selects  him  must  pay  him  for  his  time 
liiifore  he  will  be  compelled  to  testify:  Webb  v.  Page,  1  Car. 
iuid  K.,  23. 

The  ease  of  Lonergan  v.  The  Royal  Exchange  Assurance^ 
referred  to  in  the  above  note,  was  not  the  case  of  a  witness 
called  to  give  professional  opinion ;  but  the  witness  was  a  for- 
eign sea  captain,  without  whose  presence  the  plaintiff's  attorney 
'•  deemed  it  unsafe  to  trust  the  trial  of  the  cause  to  written  depo- 
i-itions,  so  long  as  he  could  prevail  on  the  captain  to  remain  in 
England  to  give  his  evidence  personally  on  the  trial  before  the 
jury,  inasmuch  as  the  demeanor  and  manner  of  Captain  Moffatt's 
iriving  his  evidence  before  a  jury  might  have  great  weight  with 
a  jury,  in  addition  to  his  intelligence  and  gentlemanly  appear- 
ance." Tindall,  C.  J.,  said,  amongst  other  things :  "  But  the 
general  rule  has  been,  that  where  witnesses  attend  under  a  sub- 
jKjena,  none  receive  any  allowance  for  loss  of  time  except  medical 
men  and  attorneys.  If  that  rule  were  to  undergo  revision,  I  can- 
not say  it  would  stand  the  test  of  examination.  There  is  no  rea- 
son for  assuming  that  the  time  of  medical  men  and  attorneys  is 
more  valuable  than  that  of  others  whose  livelihood  depends  on 
their  personal  exertions. 

But  that  rule  is  not  applicable  to  the  case  of  a  foreign  witness, 
who  may  refuse  to  attend  if  the  terms  he  proposes  are  not 
acceded  to.  If  he  asks  only  what  is  reasonable,  I  cannot  see 
why  it  should  not  be  allowed,  and  be  charged  to  the  unsuccessful 
|iarty. 

The  case  which  is  supposed  to  have  exploded  the  rule,  that 
attorneys  and  medical  men  are  to  have  additional  compensation 
for  loss  of  time,  is  that  of  Collins  v.  Gode/rog,  cited  in  the 
above  note.  In  that  case,  Collins  sued  Godefroy,  to  recover  a 
remuneration  for  plaintiff's  loss  of  time  in  attending  as  a  wit- 
ness, under  a  subpoena  issued  by  Godefroy,  in  a  case  in  which 
(Jodcfroy  was  a  party.  The  plaintiff  attended  six  days  as  a  wit- 
ness, but  was  not  called  upon  to  give  his  evidence.  Lord  Ten- 
dordcn,  C.  J.,  said  :  "  If  it  be  a  duty  imposed  by  law  upon  a 
party  regularly  subpoenaed,  to  attend  from  time  to  time  to  give 
his  evidence,  then  a  promise  to  give  him  any  remuneration  for 
loss  of  time  incurred  in  such  attendance  is  a  promise  without 


m 


m 


% 


190 


AMERICAN  CRIMINAL  REPORTS. 


i 


vv 


consideration.  We  think  tliat  such  a  duty  is  imposed  by  law ; 
and  on  consideration  of  the  statute  of  Elizabeth,  and  of  the  cases 
which  have  been  decided  on  the  subject,  we  are  all  of  opinion 
that  a  party  can  not  maintain  an  action  for  compensation  for  loss 
of  time  in  attending  a  trial  as  a  witness.  We  are  aware  of  the 
practice  whicli  has  prevailed  in  certain  causes,  of  allowing,  a.s 
costs  between  party  and  party,  so  much  per  day  for  the  attend- 
ance of  professional  men,  but  that  practice  cannot  alter  the  law. 
What  the  effect  of  our  decision  may  be  is  not  for  our  consider- 
ation. We  think,  on  principle,  that  an  action  does  not  lie  for  a 
compensation  to  a  witness  for  loss  of  time  in  attendance  under  a 
subpoena." 

But,  notwithstanding  the  case  above  noticed,  the  rule  allowing 
professional  men  additional  compensation  was  followed  in  Eng- 
land as  late  as  1802.  In  the  (!ase  of  ParTclnMm  v.  Atl'hison,  31 
L.  J.  U.  S.  C.  P.,  109,  the  master  had  allowed  the  expenses  of 
an  attorney,  who  was  called  as  a  witness,  but  who  did  not  give 
professional  evidence,  «tn  the  higher  scale  allowed  to  professional 
witnesses.  On  motion  for  a  rule  to  show  cause  why  the  taxation 
should  not  be  reviewed,  Erie,  C.  J.,  said :  "  We  do  not  approve 
of  the  rule  which  is  said  to  prevail  in  criminal  cases,  that  if  a 
surgeon  is  called  to  give  evidence  not  of  a  pi-ofessional  character 
lie  is  only  to  have  the  expenses  of  an  ordinary  witness.  We 
think  the  master  was  quite  right  in  allowing  the  expenses  of  this 
witness  on  the  hiy;lier  scale." 

So,  also,  in  the  case  of  Turner  v.  Turner,  5  Jur.  U.  S.,  S.'JO, 
the  master  allowed  one  Marius  Turner,  a  barrister  of  London, 
one  pound  and  a  shilling  a  day  for  attendance  as  a  witness.  The 
vice-chancellor  said  :  "  The  right  of  a  professional  man  to  \l.  U. 
per  day  was  founded  on  the  fact  of  his  being  abstracted  from  his 
functions.  It  was  unnecessary  to  say  what  classes  came  within 
the  dotinition  '  professional  man,'  but  there  was  no  doubt  that  a 
barrister  did,  and  if  subpcenaed  as  a  witness  he  had  a  right  to 
receive  the  romuneratic»n,  small  and  scanty  as  it  wa«." 

The  motion  to  vary  the  taxation  was  overruled. 

The  foregoing  cases,  however,  do  not  decide  the  point  involved 
here,  and  they  have  been  noticed,  rather  with  a  view  of  showing 
that  they  are  not  in  conflict  with  the  right  claimed  by  the  appel- 
lant, tlian  as  establishing  that  right. 

We  come  now  to  authorities  more  directly  in  point. 

The  case  of   Webh  v.  Page,  cited  in  the  above  note  from 


BUCIIMAN  V.  STATE. 


m 


1  Grcenlf.  Ev.,  decided  in  1843,  was  an  action  for  ne<^li<;ence  in 
carrying  goods. 

A  witness  was  called  for  the  plaintiff,  to  speak  to  the  nature 
of  the  damage  sustained  by  the  goods,  consisting  of  cabinetwork, 
and  the  expense  that  would  be  necessary  to  restore  or  replace 
tlie  injnred  articles.  The  witness  demanded  compensation,  and 
Mind,  J.,  in  deciding  the  point  raised,  used  the  language  set  out 
in  the  latter  part  of  the  note  above  cited  from  Greenleaf. 

The  witness,  upon  receiving  an  undertaking  for  his  pay,  was 
examined.  This  is  the  only  English  case  that  bears  directly 
upon  the  point,  of  which  we  have  any  knowledge. 

The  American  cases  are  not  numerous,  and  we  proceed  to 
notice  such  as  there  are  : 

//(.  the  matter  of  lioelker,  Sprague,  270,  during  a  trial  upon  an 
indictment,  the  district  attorney  moved  for  a  capias  to  bring  in 
a  witness  who  had  been  subpoenaed  to  testify  as  an  interpreter. 
But  Sprague,  J.,  said,  "  that  a  similar  question  had  lieretofore 
arisen  as  to  experts,  and  he  had  declined  to  issue  process  to  arrest 
in  such  cases.  When  a  person  has  knowledge  of  a  fact  pertinent 
to  an  issue  to  be  tried,  he  may  be  compelled  to  attend  as  a  wit- 
ness. In  this  all  stand  upon  equal  ground.  But  to  compel  a 
person  to  attend  merely  because  he  is  accomplished  in  a  particu- 
lar science,  art,  or  profession,  would  subject  the  same  individual 
to  be  called  upon  in  every  cause  in  which  any  question  in  his 
de])artment  of  knowledge  is  to  be  solved.  Thus,  the  most  emi- 
nent physician  might  be  compelled  merely  for  the  ordinary  wit- 
ness fee,  to  attend  from  the  remotest  part  of  the  district,  and 
give  his  opinion  in  every  trial  in  which  a  medical  question  would 
arise.  This  is  so  unreasonable  that  nothing  but  necessity  can 
justify  it.  The  case  of  an  interpreter  is  analogous  to  that  of  an 
expert.  It  is  not  necessary  to  say  what  the  court  would  do  if  it 
a|)peared  that  no  other  interpreter  could  be  obtained,  by  reason- 
able effort.  Such  a  case  is  not  made  as  the  foundation  of  this 
m(»tion.  It  is  well  known  that  there  are  in  Boston  many  native 
Germans  and  others  skilled  in  both  the  German  and  English 
languages,  some  of  whom  it  may  be  presumed  might,  without 
difKculty,  be  induced  to  attend  for  an  adequate  compensation." 

In  the  case  of  The  People  v.  Montgomery^  13  Ab.  Pr.  Rep., 
N.  S.,  207,  Montgomery  was  indicted  for  murder.  The  district 
attorney  had  procured  the  attendance  of  Dr.  Hammond  as  a  wit- 
ness, to  testify  professionally  in  the  cause,  who  was  paid,  or  to 


■5^; 


19: 


AMERICAN  CKDIINAL  REPORTS. 


r<if' 


i\ 


?M    Ml 


f  •  II- 


be  paid,  tlie  sum  of  five  hundred  dollars  for  his  attendance  and 
service  as  such  witness.  This  was  coinphiined  of  as  an  irregular- 
ity. The  court  said,  E.  D.  Smith,  P.  J.,  delivering  the  opinion : 
"  We  do  not  see  that  the  calling  of  Dr.  Hammond  as  a  witness, 
and  the  payment  to  him  of  a  sufficient  sum  to  secure  his  attend- 
ance at  the  court  during  the  trial,  was  in  any  respect  an  irregu- 
larity or  did  any  wrong  to  the  prisoner.  It  seems  to  us  that  tlie 
district  attorney  was  acting  on  the  line  of  his  duty  as  public 
prosecutor  in  securing  the  attendance  of  a  proper  medical  wit- 
ness of  high  repute,  to  meet  the  distinguished  medical  experts 
which  he  knew  the  prisoner  expected  to  call  on  his  side.  *  * 
The  district  attorney,  it  is  true,  might  have  acquired  the  attend- 
ance of  Dr.  Ilanuiiond  on  subpoena,  but  that  would  not  have 
sufficed  to  qualify  him  to  testify  as  an  expert,  with  clearness  and 
certainty,  upon  the  question  involved.  He  would  have  met  the 
requireuicnt  of  a  subpoena  if  he  had  appeared  in  court  when  ho 
was  required  to  testify,  and  give  proper  impromptu  answers  to 
such  questions  as  might  then  have  been  put  to  him  in  behalf  of 
the  people.  He  could  not  have  been  required,  under  process  of 
subpoena,  to  examine  the  case  and  have  used  his  skill  and  knowl- 
edge to  enable  him  to  give  an  opinion  upon  any  points  of  the 
case,  nor  to  have  attended  during  the  whole  trial  and  attentively 
considered  and  carefully  heard  all  the  testimony  given  on  both 
sides,  in  order  to  qualify  him  to  give  a  deliberate  opinion  upon 
such  testimony  as  an  expert  in  respect  to  the  question  of  the 
sanity  of  the  prisoner.  Professional  witnesses,  I  suppose,  are 
more  or  less  paid  for  their  time  and  services  and  expenses,  when 
called  as  experts  in  important  cases,  in  all  parts  of  the  country." 

These  cases  go  far  to  estal»lish  the  position  contended  for  by 
the  appellant.  But,  on  the  other  hand,  tlie  case  of  Kt  parte 
Dement,  decided  by  the  Sui)reme  Court  of  Alaljama,  and  reported 
in  "The  Reporter,"  vol.  5,  Jan.  30,  1878,  p.  188,  decides  that  a 
])hy8ician  or  surgeon  may  be  compelled  to  testify  as  an  ex])ert, 
where  the  testimony  is  relevant  to  a  cause  jiending  before  a 
judicial  tribunal,  without  being  paid  as  for  a  professioiud  opinion. 

Having  thus  considered  the  cases  that  have  come  under  our 
notice,  bearing  on  the  subject,  it  may  be  well  to  look  at  the 
works  of  text  writers,  for  they  furnish,  at  least,  some  evidence 
of  what  the  law  is. 

In  1  Taylor's  Principles  of  Medical  Jurisprudence,  p.  19,  it  is 
Baid  thai,  "  Before  being  sworn  to  d,eliver  his  evidence,  a  medical 


IJUCIIMAN  c.  STATE. 


193 


or  scieiitiftc  witness  may  claim  the  j^-aymeiit  of  his  ciistomary 
fees,  unles-s  an  aiTaiigement  has  ah'eady  been  made  between  him 
and  tin.'  solicitors  who  have  sent  him  a  aubpcena.  These  fees  are 
generally  made  a  matter  of  private  arrangement  between  the 
witness  and  the  attorney."  This  clearly  implies  that  he  is  to  be 
j)aid  his  customary  fees  for  an  opinion,  and  that  he  may  demand 
payment  before  delivering  his  evidence.  But  we  doubt  whether 
he  could  make  the  demand  before  being  sworn ;  for  he  might  be 
called  upon  to  prove  some  fact  within  his  knowledge. 

In  the  Juris))rudence  of  Medicine,  in  its  relation  to  the  Law  of 
Contracts,  Torts  and  Evidence,  by  John  Ordronaux,  sections  114, 
115,  it  is  said  :  "  But  once  put  upon  the  stand  as  a  skilled  witness, 
his"  (the  physician's)  "obligation  to  the  public  now  ceases,  and 
lie  stands  in  the  position  of  any  professional  man  consulted  in 
relation  to  a  subject  upon  which  his  opinion  is  sought.  It  is 
evident  that  the  skill  and  professional  experience  of  a  man  are  so 
far  his  individual  capital  and  property,  that  he  cannot  be  com- 
pelled to  bestow  it  gratuitously  upon  any  party.  Neither  the 
public,  any  more  thau  a  private  person,  have  a  right  to  extort 
services  from  him  in  the  line  of  his  profession,  without  adequate 
compensation.  On  the  witness  stand,  precisely  as  in  his  office, 
his  opinion  may  be  given  or  withheld  at  pleasure,  for  a  skilled 
witness  cannot  be  compelled  to  give  an  opinion,  nor  committed 
for  contempt  if  he  refuses  to  do  so.  *  *  As  the  result  of  the 
foregoing  conclusions,  it  may  be  said  that  a  witness  who  is  called 
in  an  action  to  depose  to  a  matter  of  opinion,  depending  on  his 
skill  in  a  particular  trade,  has,  before  he  is  examined,  a  right  to 
demand,  from  the  party  calling  him,  a  compensation  for  his 
services,  for  there  is  a  wide  distinction  between  a  witness  thus 
called,  and  a  witness  who  is  called  to  depose  to  facts  which  he 
saw." 

Then  follow  the  remarks  of  Maule,  J.,  in  the  case  of  Wehh  v. 
Pa(/e,  which  have  already  appeared  in  this  opinion. 

In  2  Phil.  Ev.,  1th  Am.  ed.,  p.  828,  it  is  said :  "  With  respect 
to  compensation  for  loss  of  time,  the  general  rule  is,  that  it  ouglit 
not  to  be  allowed,  though  some  compensation  has  been  usually 
allowed  to  medical  men  and  attorneys,  but  not  to  others.  And 
there  seems  to  be  a  reasonable  distinction  between  the  case  of  a 
witness  called  to  depose  to  a  fact,  and  one  who  is  called  to  speak 
to  a  matter  of  opinion,  depending  on  his  skill  in  a  particular  pro- 
fession or  trade ;  the  former  is  bound,  as  a  nuitter  of  public  duty, 
Vou  II.— 13 


194 


AMEIUUAN  CUIMINAL  IIKPOIITS. 


h 
u 


, 


Lilt. 


m 


■I-  f :  1 1|'?| 


to  speak  to  the  fact  wliicli  has  occurred  within  his  knowledge ; 
bnt  the  latter  is  under  no  such  obligation,  .ind  is  selected  by  tlie 
party  to  give  his  opinion  merely,  and  he  is  entitled,  therefore,  to 
demand  a  compensation  for  loss  of  time." 

In  1  Kedtield  Wills,  note  46  to  par.  51,  pp.  154:-5,  the  author 
says  the  following  propositions  may  be  of  interest : 

"  1.  It  is  clear  that  experts  are  not  obliged  to  give  testimony 
upon  mere  speculative  grounds,  and  where  they  have  no  personal 
knowledge  of  the  facts  in  the  case.  If  they  have  had  personal 
knowledge  of  the  testator,  it  may  fairly  be  regarded  as  amount- 
ing to  the  knowledge  of  facts.  But  unless  that  is  the  case,  u 
medical  witness  is  not  obliged  to  obey  the  ordinary  witness  sub- 
poena, and  will  not  be  held  in  contempt  for  disobeying  it.  This 
has  been  so  ruled  at  nisi  privs  in  England  within  the  last  few 
years. 

"■  2.  The  expert  is  not  obliged  to  examine  books  and  prece- 
dents, with  a  view  to  qualify  himself  to  give  testimony ;  nor  is 
he  obliged  to  examine  into  the  facts  of  cises  by  personal  inspec- 
tion of  indivi(hials  whose  state  may  be  the  subject  of  controversy 
in  courts. 

"3.  It  being  purely  matter  of  conventional  arrangement 
between  ])rot'e8sional  experts  and  those  who  desire  to  employ 
them  as  witnesses,  both  in  regard  to  their  acting  as  such,  and  also 
their  making  jireparation  to  ena!)lc  them  to  give  such  testimony 
in  the  market,  and  its  price  is  likely  to  range  somewhat  accord- 
ing to  its  ability  to  aid  one  or  other  of  the  parties  litigant.  The 
tendency  of  this  is  to  render  it  partizan  and  one-sided,  as  a 
general  thing." 

Judge  Redfield  in  no  manner  dissents  from  the  above  propo- 
sitions as  legal  ones,  but  suggests,  not  that  experts  are  not  entitled 
to  be  paid,  but  that  the  law  should  be  so  changed  "  that  this  class 
of  witnesses  should  be  selected  by  the  court,  and  that  this  should 
be  done  wholly  independent  of  any  nomination,  recommendation 
or  interference  of  the  parties,  as  much  so,  to  all  intents,  as  are 
jurors.  To  this  end,  therefore,  the  compensation  of  scientific 
experts  should  be  fixed  by  statute,  or  by  the  court,  and  paid  out 
of  the  public  treasury,  and  either  charged  to  the  expenses  of  the 
trial,  as  part  of  the  costs  of  the  cause,  or  not,  as  the  legislature 
shall  deem  the  wisest  policy." 

Iowa  has  legislated  upon  the  subject,  so  that  the  court  is  to  fix 
the  compensation,  with  reference  to  the  time  employed  and  the 


degr 


liiii 


k 


\ 


i 


BUCHMAN  V.    STATE. 


195 


degree  of  learning  or  skill  required :  Snyder  v.  Iowa  City,  40 
Iowa,  C4G. 

These  elementary  autliorities,  and  the  cases  of  Webb  v.  Page, 
The  Peojyle  v.  Montgomery,  and  In  the  matter  of  Uoelker,  supra, 
clearly  and  unmistakably  point  to  the  conclnsion  that  the  appel- 
lant was  not  bound  to  give  his  professional  opinion  without 
having  Ijeen  paid  therefor. 

It  would  seem,  on  general  principles,  that  the  knowledge  and 
learning  of  a  phj'sician  should  be  regarded  as  his  property,  which 
ought  not  to  be  extorted  from  him,  in  the  form  of  opinion,  with- 
out just  compensation.  It  was  said  by  this  court  of  an  attorney 
in  the  case  of  ^^^e})b  v.  Baird,  0  Ind.,  13 :  "To  the  attorney,  his 
profession  is  his  means  of  livelihood.  His  legal  knowledge  is  his 
capital  stock." 

The  pro])crty  which  an  attorney  or  physician  may  have  in  his 
professional  knowledge,  if  it  is  to  be  regarded  in  the  light  of 
property,  may  not  be  of  a  tangible,  corporeal  character;  it  may 
be  neither  goods  nor  chattels,  lands  nor  tenements,  but  it  may, 
nevertheless,  be  property.  A  party  who  has  a  copyright  in  a 
book  has  a  property,  which  consists,  not  in  the  right  to  the  book 
merely,  but  to  the  exclusive  right  of  multiplying  copies  thereof : 
2  Cooley's  Bl.  Com.,  405  ;  Curtis's  Copyright,  13 ;  Copinger  Law 
of  Copyright,  1,  note  a. 

The  question  has  been  considered  thus  far  only  upon  general 
princij)les  of  law.  We  proceed  now  to  test  it  by  the  constitution 
of  the  state.  Section  21  of  the  bill  of  rights  provides  that,  "  No 
man's  particular  services  shall  be  demanded  without  just  com- 
pensation." 

In  Israel  v.  The  State,  8  Ind.,  467,  it  was  held  that  the  ser- 
vices of  witnesses  in  criminal  cases  were  not  "  particular  services," 
within  the  meaning  of  the  constitution.  This  is  conceded.  Wit- 
nesses who  know  anything  of  a  case,  however  high  or  low,  rich 
or  poor,  learned  or  unlearned,  they  may  be,  or  whether  occupy- 
ing public  or  i)rlvate  stations  in  life,  all  stand  upon  an  equality 
in  tliis  respect,  and  must  attend  as  witnesses,  without  other  com- 
pensation than  that  provided  by  law.  This  is  a  burden  that  falls 
upon  iill  alike.  Tlie  witnesses  are  bound  to  attend,  and,  in  the 
language  of  some  of  the  authorities  before  cited,  "  speak  to  tlie 
facts  which  have  occurred  within  tlieir  knowledge."  But  the 
case  decides  nothing  upon  the  point  liere  involved.  The  case  of 
Blythe  V.  The  State,  4  Ind.,  525,  however,  is  exactly  in  point  in 


I 


f 


m 


m:i': 


196 


AMERICAN  CRIMINAL  REPORTS. 


1 


1 


principle.  There  Blythe,  an  attorney  of  the  court,  was  appointed 
to  defend  a  pauper  on  the  charge  of  larceny.  Blythe  denied  tlie 
right  of  the  state,  or  the  court,  to  demand  his  professional  ser- 
vices without  compensation,  and  refused  to  act.  For  this  refusal 
the  court  adjudged  him  guilty  of  contempt.  This  court  held. 
Tinder  the  provision  of  the  constitution  above  set  out,  that  he 
was  not  bound  to  perform  the  service. 

In  Wehb  v.  Baird,  6  Ind.,  13,  Baird  had  been  appointed  to 
defend  a  pauper,  on  a  criminal  charge,  and  had  performed  the 
service  ;  and  the  question  involved  was,  whether  he  was  entitled 
to  compensation  from  the  county.  Judge  Stuart  said,  in  deliver- 
ing the  opinion  of  the  court,  "  that  any  class  should  be  pai<l  for 
their  particular  services  in  empty  hono.s,  is  an  absolute  idea 
belonging  to  another  age  and  to  a  state  of  society  hostile  to 
liberty  and  equal  riglits.  To  the  attorney,  his  profession  is  liis 
means  of  livelihood.  His  legal  knowledge  is  his  capital  stock. 
His  professional  services  are  no  more  at  the  mercy  of  the  public, 
as  to  remuneration,  than  are  the  goods  of  the  merchant  or  the 
crops  of  the  farmer,  or  the  wares  of  the  mechanic.  The  law 
which  requires  gratuitous  services  of  a  particular  class  in  elToct 
imposes  a  tax  to  that  extent  upon  such  class,  clearly  in  violation 
of  the  fundamental  law,  which  provides  for  a  uniform  and  equal 
rate  of  assessment  and  taxation  upon  all  the  citizens." 

But,  if  the  professional  services  of  a  lawyer  cannot  be  required 
in  a  civil  or  criniinal  case  without  compensation,  how  can  the 
professional  services  of  a  physician  be  thus  required?  Is  not  his 
medical  knowledge  his  capital  stock  ?  Are  his  professional  ser- 
A'iccs  more  at  the  mercy  of  the  public  than  the  services  of  a 
lawyer?  When  a  physician  testifies  as  an  expert,  by  giving  his 
opinion,  he  is  performing  a  strictly  professional  service.  To  be 
sure,  he  performs  that  service  under  the  sanction  of  an  oath.  So 
does  the  lav>yer  when  he  performs  any  si'rvice  in  a  cause.  Tlie 
position  of  a  medical  witness,  testifying  as  an  expert,  is  much 
more  like  that  of  a  lawyer  than  that  of  an  ordinary  witness,  testi- 
fying to  facts.  The  purpose  of  his  service  is  not  to  prove  facts 
in  the  cause,  but  to  aid  the  court  or  jury  in  arriving  at  a  j)roper 
conclusion  from  facts  otherwise  proved.  Is  not  this  also  the 
province  and  business  of  an  attorney  ?  And  are  not  the  services 
of  each  equally  "particular?"  All  attempts  to  make  a  difference 
in  the  two  cases  are  but  losing  sight  of  the  substance,  arid  grasp- 
ing at  the  shadow. 


BUCHMAN  V.  STATE. 


in: 


If  physicians  or  surgeons  can  be  compelled  to  render  profes- 
sional services  by  giving  their  opinions  on  the  trial  of  criminal 
causes,  without  compensation,  then  an  eminent  physician  or 
puryeon  may  be  compelled  to  go  to  any  part  of  the  state,  at  any 
and  all  times,  to  render  such  service,  without  other  compensation 
tliiin  such  as  he  may  recover,  as  ordinary  witness  fees,  from  the 
defeiidaut  in  the  prosecution,  depending  upon  his  conviction  and 
ability  to  pay.  This,  under  the  general  principles  of  law  and  the 
constitution  of  the  state,  he  cannot  be  compelled  to  do.  If  he 
kiiou.s  facts  pertinent  to  the  case  to  be  tried,  he  must  attend  and 
testify  as  any  other  witness.  In  respect  to  facts  within  the 
knowledge,  his  qualifications  as  a  physician  or  surgeon  are 
entirely  unimportant.  In  respect  to  facts,  as  before  stated,  he 
stands  upon  an  equality  with  all  other  witnesses,  and  the  law,  as 
well  as  his  duty  to  the  public,  requires  him  to  attend  and  testify 
for  such  fees  as  the  le<'islature  has  provided.  Not  so,  however, 
in  respect  to  his  professional  opinions.  In  giving  them,  he  is 
performing  a  "particular"  service,  which  can  not  be  demanded 
of  him  without  compensation. 

The  13th  section  of  the  biP  of  rights  provides  that,  in  all 
criminal  prosecutions,  the  accused  shall  have  the  right  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor. 

This  prosecution  has  no  beaiing  upon  the  question  involved. 
The  term  "witnesses,"  as  thus  used,  was  used  in  its  ordinary 
sense,  as  embracing  those  who  know  or  are  supposed  to  know 
some  fact  or  facts  pertinent  to  the  cause.  But  the  physician  or 
surgeon,  when  giving  his  professional  opinion  in  a  court,  does 
not,  as  before  stated,  occupy  the  position  of  a  witness  testifying 
to  facts.  He  j)erfornis  the  stirvico  under  oath,  to  l)e  sure,  and 
this  is  the  only  circumstance  from  which  he  can  be  called  a  wit- 
ness at  all.  So  the  judge  upon  the  bench,  the  lawyer  at  the  bar, 
and  the  jury  in  the  jury-box,  all  perform  their  services  under 
oath. 

It  is  not  necessary  to  determine  in  this  case  whether  all  classes 
of  experts  can  refpjire  payment  before  giving  their  opinions  as 
such.  It  is  suflicient  to  say  that  physicians  and  surgeons  whose 
opinions  are  valuable  to  them  as  the  source  of  their  income  and 
livelihood,  can  not  be  compelled  to  perform  servici;  by  giving 
such  opinions  in  a  court  of  justice  without  such  jmyment. 

The  appellant  could  not  have  been  legally  required  to  answer 


198 


AMKltlCAN  CRIMINAL  HEPOUTS. 


the  questions  propounded  to  liim,  without  compensation,  and  his 
commitnient  for  contempt  was  erroneous. 

The  judgment  below  is  reversed  and  the  cause  remanded. 


Anderson  v.  State. 

(41  Wis.,  430.) 

Evidence:    Degree  of  proof —  Beasoiiable  doubt  —  Erroneous  charge. 

A  charge  that  "  In  order  to  convict,  the  evidence  should  be  such  as  to  con- 
vince you,  as  reasonable  men,  that  the  charge  is  true.  If,  as  reasonable 
men,  guided  by  that  prudsme  and  reamn  which  gotern  you  in  the  ordinary 
conduct  of  your  affairs,  you  have  a  doubt  of  the  defendant's  guilt,  you 
should  acquit,"  is  erroneous.  The  jury  might  well  have  understood  from 
it  that  if  in  their  ordinary  aflFairs  they  would,  upon  the  evidence  before 
them,  adopt  and  net  upon  the  hypothesis  that  the  accused  was  guilty  of 
the  crime  charged,  they  should  convict  him. 

Lyon,  J.  The  plaintiff  in  error  was  tried  upon  an  information 
charging  him  with  the  crime  of  rape,  and  was  convicted  thereof, 
and  sentenced  to  imprisonment  for  a  term  of  years  in  the  state 
prison.  The  judgmetit  comes  here  for  review  on  a  writ  of 
error. 

On  the  trial  the  judge  instructed  the  jury  (among  otlier  things) 
as  follows :  "  In  order  to  convict,  the  evidence  should  be  such 
as  to  convince  you,  as  reasonable  men,  that  the  charge  in  the 
information  is  true.  If,  as  reasonable  men,  yxiided  hy  that  pru- 
dence and  reamn  which  govern  you  in  the  ordinary  conduct  of 
your  qfa/'rfi,  you  liave  a  doubt  of  the  defendant's  guilt,  you 
should  acquit." 

One  of  the  errors  assigned  is  the  giving  of  the  above  instruc- 
tion. 

Without  doing  any  violence  to  the  language  of  the  above 
instruction,  we  think  the  jury  might  well  have  understood  from 
it  that  if,  in  tlieir  ordinary  affairs  they  would,  on  the  evidencv) 
before  them,  adopt  and  act  ui)on  the  hypothesis  that  the  plaintiff 
in  error  was  guilty  of  the  crime  charged,  they  should  ('(Hivict 
him.  It  may  be  the  learned  circuit  judge  did  not  intend  to  lay 
down  that  proposition  ;  yet,  if  the  instruction  n)ight  reasonably 
have  been  so  understood  by  the  jury,  the  effect  upon  the  judg- 
ment is  the  same  as  though  the  ])roposition  had  been  stated  in 
unmistakable  language. 


ANDERSON  v.  STATE. 


199 


It  seems  to  us  that  the  proposition  is  unsound,  and  that  the 
instruction  exposed  the  plaintiff  in  error  to  conviction  on  insuffi- 
cient evidence.  The  truth  is,  that  in  their  ordinary  affairs,  men 
accept  and  are  entirely  satisfied  with  less  conclusive  evidence  of 
the  existence  of  the  facts  which  control  their  action,  than  they 
would  accept  or  be  satisfied  with  in  affairs  of  greater  importance. 
The  more  important  the  matter,  the  closer  will  be  the  scrutiny 
of  the  evidence ;  and  such  scrutiny  may  develop  rtasonable 
doubts  of  the  existence  of  the  facts  which  otherwise  would  not 
have  arisen. 

To  illustrate,  suppose  a  person  cognizant  of  the  evidence  in 
this  case  were  determining  whether  he  would  employ  the  plain- 
tiff in  error  as  his  servant.  If  the  latter  is  innocent  of  the  crime 
charged,  such  person  would  so  employ  him ;  if  guilty,  he  would 
not.  This  is  an  ordinary  affair,  which  does  not  call  for  any  very 
close  or  careful  scrutiny  of  evidence ;  and  the  positive  testimony 
of  the  prosecutrix,  that  the  plaintiff  in  error  ravished  her,  might 
he  satisfactory  proof  of  his  guilt.  But  make  it  the  duty  of  such 
person  to  scan  the  evidence  with  the  greatest  caution  and  care, 
and  he  might  discover  in  it  that  which  would  raise  very  grave 
doubts  in  his  mind  of  the  guilt  of  the  accused. 

A  person  accused  of  crime  is  entitled  to  have  the  evidence 
against  him  closely  and  carefully  considered,  and  can  only  be 
lawfully  convicted  when,  after  such  scrutiny,  the  jury  can  say 
upon  their  oaths  that  the  evidence  leaves  in  their  minds  no  rea- 
sonable doubt  of  the  guilt  of  the  accused.  The  absence  of  the 
doubt  of  guilt,  when  the  measure  and  limit  of  the  scrutiny  is 
that  which  reasonable  men  would  exercise  in  tlie  ordinary  affairs 
of  life,  is  not  sufticient,  for  it  does  not  necessarily  result  there- 
from that  the  evidence  properly  considered  would  leave  no  such 
doubt. 

This,  therefore,  is  the  infirmity  of  the  instruction.  It  gave  a 
wrong  basis  or  stand-point  from  which  the  jury  were  to  deter- 
mine the  presence  or  absence  of  a  reasonable  doubt,  and  exposed 
tiie  plaintiff  in  error  to  a  conviction  on  insufficient  evidence.  If 
the  learned  circuit  judge  desired  to  make  use  of  any  such  analogy, 
lie  should  have  told  the  jury  that  it  was  their  duty  to  scrutinize 
tiio  evidence  with  the  utmost  caution  and  care,  bringing  to  that 
duty  the  reason  and  prudence  which  they  would  exercise  in  the 
most  important  affairs  of  life — in  fact,  all  the  judgment,  caution 
iind  discrimination  they  possessed ;  and  then,  unless  they  could 


\' 

1                       ..; 

1                  •     '.1 

1    > 

;                   .  i 

m 


m 


'lu 


' 


AMERICAN  CUIMINAL  REPORTS. 


say  from  that  stand-point,  that  the  evidence  failed  to  impress 
their  minds  with  any  reasonable  doubt  of  guilt,  they  should 
acquit  the  accused.  Had  such  an  instruction  been  given  and 
observed,  a  verdict  of  acquittal  might  have  been  rendered,  for  a 
careful  scrutiny  of  the  whole  testimony  might  well  have  left  a 
reasonable  doubt  whether  the  elements  of  force  entered  into  the 
transaction  uj^on  which  the  information  is  predicated,  if  there 
was  any  such  transaction. 

The  foregoing  views  are  sustained  by  authority.  In  the  recent 
case  of  State  v.  Hour,  decided  by  the  Supreme  Court  of  Nevada, 
an  abstract  of  which  will  be  found  in  the  Law  and  Ecpiity 
Iteporter,  V  )1.  3,  Xo.  14  (p.  422),  the  court,  in  a  careful  and 
extended  review  of  the  authorities,  lield  the  following  instruc- 
tion erroneous  :  "  By  reasonable  doubt,  is  meant  such  a  doubt 
as  would  govern  or  control  you  in  your  business  transactions  or 
usual  pursuits  of  life."  '^' 3  court,  by  Ilawley,  C.  J.,  say  that, 
"  to  ascertain  the  truth  ot  any  given  proposition  with  reference 
to  the  ordinary  and  usual  business  transactions  of  life,  men  are 
governed  aiid  controlled  as  juries  are  in  deciding  civil  cases,  by  a 
preponderance  of  evidence.  Men  frequently  act  "  in  the  busi- 
ness transactions  or  usual  pursuits  of  life"  without  any  firm  or 
settled  conviction  that  the  conclusion  upon  which  they  act  is  cor- 
rect. *  *  *  The  preponderance  or  weight  of  testimony 
upon  which  men  would  ordinarily  be  willing  to  act  in  "their 
business  transactions  or  in  the  usual  pursuits  of  life,"  is  not  the 
rule  that  should  govern  jurors  in  deciding  questions  tliat  involve 
the  life  or  llbiM-ty  ot  an  'lulivldual.  This  case  exj)ressly  over- 
rules that  of  Stiit('  i\  MlUain,  3  Nov.,  409,  in  which,  without 
argument  or  citation  of  authority,  the  same  court,  in  18*57, 
upheld  a  similar  instruction  in  a  criminal  case. 

On  similar  reasoning  It  was  held,  in  Jane  v.  The  Voininon- 
ioca/f/i,  2  Met.  (Ky.),  30,  that  the  following  instruction  was 
erroneous ; 

"  The  jury  should  woigli  and  cotisider  all  the  facts  and  circum- 
etances  ])roven  to  their  satisfaction,  in  connection  atid  combina- 
tion, and  should  hold  them  and  pass  judgment  on  them  in  that 
condition ;  and  if  the  coiiclusions  from  the  facts  and  circum- 
etances  so  proven  to  their  satisfaction  be,  that  there  is  that 
drrjrce  of  ccrtdhity  in  the  case  that  they  would  act  on  It  \n  their 
own  grave  and  important  concerns,  that  is  the  degree  of  cer- 


''.J 


COMMONWEAtTH  ».  HAWES. 


201 


tainty  wliicli  the  law  requires,  and  which  will  justify  and  war- 
rant tlieni  in  returning  a  verdict  of  guilty. 

We  are  aware  that  the  language  of  the  instruction  in  the 
present  case  ie  not  flie  same  as  in  the  ^Nevada  and  Kentucky 
cases,  and  perhaps  a  close  analysis  of  it  might  disclose  a  different 
meaning.  But  it  was  addressed  to  men  who  had  no  opportunity 
for  close  analysis,  and  who,  as  already  observed,  might  well  have 
understood  it  as  asserting  the  rule  of  the  instructions  in  those 
cases. 

Several  other  questions  of  importance  were  argued  at  the  bar, 
but  we  feel  ourselves  relieved  from  the  duty  of  passing  upon 
tliein. 

Ik'cause  of  such  erroneous  instruction,  the  judgment  of  the 
circuit  court  must  be  reversed,  and  the  cause  remanded  for  a 
new  trial. 

By  the  court.     So  ordered. 


Commonwealth  v.  Hawes. 

(13  Bush.  [Ky.],  697.) 

Extradition. 

The  respondent  was  extradited  from  Canada  under  the  Ashburton  treaty  of 
1843,  to  be  tried  on  tliree  separate  indictments  for  forjjcry.  On  two  of 
tliose  he  was  tried  and  acquitted,  and  tlie  tliird  was  dismissed.  It  was 
tlien  sought  to  try  liim  for  emltezzlement,  there  l)eing  tlien  pending 
ngaiiist  liim  indictments  of  embezzlement  and  utieriiig  forged  pai>er.  On 
niolion  of  the  respondent,  based  on  iifiklavlts  showing  tlie  faets  of  tiie 
exi  (Hi  ion,  It  was  held  that  lie  was  entitled  to  be  diseharued  from  arrest 
an.l  afforded  a  ri'asonable  opportunity  to  return  to  (^anada  before  anj' 
proceedings  could  be  taken  against  him  on  any  charge  not  named  in  the 
warrant  of  extradition. 

Li.NDsAV,  C.  J.  Siiiitli  X.  Ilawos  stood  indicted  in  the  Kenton 
critniiiiU  court  for  uttering  forged  paper,  for  einhozzlement,  and 
also  upon  four  separate  and  distinct  charges  of  forgery.  lie 
was  found  to  be  a  resident  of  the  town  of  London,  in  tlie  Domin- 
ion of  Canada,  and  in  February,  1877,  was  demanded  by  the 
I'lvsident  of  tbe  United  States,  and  surrendered  by  the  Canadian 
aaitliorities,  tit  answer  tliree  of  said  charges  of  forgery.  As  to 
the  fourth  cliargi',  the  evidence  of  his  criminality  was  not  deemod 
mlHcient,  and  that  alleged  offense  was  omitted  from  the  warrant 
of  I'.xtradition.     The  demand  and  surrender  were  made  in  virtue 


AMERICAN  CRIMINAL  REPORTS. 


1^ 


I      ■ 


of  and  pursuant  to  the  10th  article  of  the  treaty  coiicludod 
August  9,  1842,  between  the  Kingdom  of  Great  Britain  and  the 
United  States  of  America. 

Tlie  attornej  for  the  commonwealtli  caused  two  of  the  indict- 
ments for  forgery  to  be  dismissed.  Hawes  was  regularly  tried 
under  each  of  the  remaining  two,  and  in  each  case  a  judgment  of 
acquittal  was  rendered  in  his  favor  upon  verdicts  of  not  guilty. 

After  all  this,  however,  the  officers  of  Kenton  county  con- 
tinued to  hold  him  in  custody ;  and  finally,  on  motion  of  the 
attorney  for  the  commonwealth,  one  of  the  indictments  for 
embezzlement  was  set  down  to  be  tried  on  the  6th  day  of  July, 
1877.  Further  action'  was  postponed  from  time  to  time  until 
the  21st  of  August,  1877,  when  Hawes  presented  his  affidavit 
setting  out  all  the  facts  attending  his  surrender  and  the  purposci^ 
for  which  it  was  made,  and  moved  the  court  to  continue  all  the 
indictments  then  pending  against  him,  and  to  surrender  him  to 
the  authorities  of  the  United  States,  to  be  by  them  returned,  or 
permitted  to  return,  to  his  <lomicile  and  asylum  in  the  Dominion 
of  Canada.  This  motion  was  subsequently  modified  to  the  extent 
that  the  court  was  asked  to  set  aside  the  returns  of  the  sheriff  on 
the  various  bench  warrants  under  which  he  had  been  arrested, 
and  to  release  him  from  custody.  The  court,  in  effect,  8ustaiiie(l 
this  modified  motion,  and  ordered  "  That  the  cases  of  the  Com- 
momoealth  of  Kentuchy  v.  Smith  N.  Hawes,  for  embezzlomeiit 
and  for  uttering  forged  instruments  with  intent,  etc.,  be  con- 
tinued, and  be  not  again  placed  on  the  docket  for  trial,  and  tlmt 
said  Hawes  be  not  held  in  custody  until  the  further  order  of  this 
court." 

From  said  order  the  commonwealth  has  prosecuted  this  appeal. 
It  is  not  final  in  its  nature,  but  under  the  provisions  of  sections 
335  and  337  of  the  Criminal  Code  of  Practice  it  may,  neverthe- 
less, be  reviewed  by  this  court. 

It  was  the  opinion  of  the  learned  judge  (Jackson),  who  pre- 
sided in  the  court  below,  that  the  Ifith  article  of  the  treaty  of 
1842  impliedly  prohibited  the  government  of  the  United  States 
and  the  commonwealth  of  Kentucky  from  ])roceoding  to  try 
JIawes  for  any  other  offense  than  one  of  tliose  for  which  he  had 
been  extradited,  without  first  affording  him  an  op[M)rtunity  to 
return  to  Canada;  and  that  he  could  not  be  lawfully  held  in 
custody  to  answer  a  charge  for  which  he  could  not  be  put  upon 
trial. 


tion 
the 
and 
prop 
own 
Se 
"Th 
purs 
undc 


out 


mam 


I 


COMMONVVKALTH  v.  IIAWES. 


203 


The  correc^tness  of  this  opinioii  depends  on  the  true  construc- 
tion of  tlie  10th  article  of  the  treaty,  and  also  on  the  solution  of 
the  question  as  to  how  far  the  judicial  tribunals  of  the  federal 
and  state  governments  are  required  to  take  cognizance  of,  and  in 
proper  cases  to  give  effect  to  treaty  stipulations  between  oiir 
own  and  foreign  goveriuuents. 

Section  2,  article  G  of  the  federal  constitution  dechu'cs  that, 
"This  constitution,  and  the  laws  of  the  United  States  made  in 
pursance  thereof,  and  all  treaties  made,  or  which  may  be  made 
under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land,  and  the  judges  of  every  state  shall  be  bound 
thereby,  anything  in  the  constitution  and  laws  of  any  state  to  the 
contrary  notwithstanding.''  It  will  thus  be  seen  that  with  us  a 
public  treaty  is  not  merely  a  compact  or  bargain  to  be  carried 
out  by  the  executive  and  legislative  departments  of  the  general 
government,  but  a  living  law,  operating  upon  and  binding  the 
judicial  tribunals,  state  and  federal,  and  the  tribunals  are  under 
the  same  obligations  to  notice  and  give  it  effect  as  they  are  to 
notice  and  enforce  the  constitution  and  the  laws  of  congress  made 
in  pursuance  thereof. 

"  A  treaty  is,  in  its  nature,  a  compact  between  two  nations, 
and  not  a  legislative  act.  It  does  not  generally  effect  of  itself 
the  object  to  be  accomjilished,  especially  so  far  as  its  object  is 
infra-territorial,  but  is  carried  into  execution  by  the  sovereign 
powers  of  the  respective  parties  to  the  instrument.  In  the 
United  States  a  different  principle  is  established.  Our  constitu- 
tion declares  a  treaty  to  be  the  law  of  the  land.  It  is  conse- 
quently to  be  regarded  in  the  courts  of  justice  as  ecpiivalent  to  an 
act  of  the  legislature  whenever  it  operates  of  itself,  without  the 
aid  of  any  legislative  provision :"  Foster  v.  Nellson,  2  Peters, 
253,  per  Chief  Justice  Marshall. 

When  it  is  provided  by  treaty  that  certain  acts  should  not  be 
done,  or  that  certain  limitations  or  restrictions  shall  not  be  dis- 
regarded or  exceeiled  by  the  contracting  jiarties,  the  compact  does 
not  need  to  be  supplemented  by  legislative  or  executive  action, 
to  authorize  the  courts  of  justice  to  decline  to  override  those 
limitations  or  to  exceed  the  proscribed  restrictions,  for  the  pal- 
pable and  all-sutHcieiit  reason  that  to  do  so  would  bo  not  only  to 
violate  the  public  faith,  but  to  transgress  the  "supreme  law  of 
the  land." 

A  different  rule  seems  to  have  been  initiated  in  the  case  of 


i  ' 


;il 


Sf.  Sj,  ^; 
^1«^I^^^■ 
iil: 


AMERICAN  CRIMINAL  RKPORTS. 


Caldwell  (8  Blatchford  C.  C.  Reports,  131);  but  tlie  real  deci 
sion  rendered  in  that,  as  in  the  subsequent  case  of  Lawrence  (13 
Blatchford  C.  0.  Reports,  295),  decided  by  the  same  jndfro.  was. 
that  extradition  proceedings  had  pursuant  to  the  treaty  under 
consideration  do  not,  by  their  nature,  secure  to  the  peison  sur- 
rendered immunity  from  prosecution  for  an  offense  other  than 
the  one  upon  which  the  surrender  is  made ;  and  the  intimation  in 
Caldwell's  case  that  the  judiciary  may  leave  it  to  the  executive 
department  to  interfere  to  preserve  and  protect  the  good  faith  of 
tilt'  government  in  a  case  like  this,  is  at  the  most  but  a  dictum. 

The  10th  article  of  the  treaty  of  1842  is  as  follows:  "It  is 
agreed  that  the.  United  States  and  Her  Britannic  Majesty  shall, 
upon  mutual  requisitions  by  them  or  their  ministers,  officers,  or 
autiiorities,  respectively  made,  deliver  up  to  justice  all  persons 
who,  being  charged  with  the  crime  of  murder,  or  assault  with 
intent  to  commit  murder,  or  piracy,  or  arson,  or  robbery,  or 
forgery,  or  the  utterance  of  forged  paper,  committed  within  the 
jurisdiction  of  either,  shall  seek  an  asylum,  or  shall  be  found 
within  the  territories  of  the  other ;  provided  that  this  shall  only 
be  done  upon  such  evidence  of  criminality  as,  according  to  the 
laws  of  the  place  where  the  fugitive  or  j)erson  so  charged  shall 
be  found,  would  justify  his  apprehension  and  commitment  for 
trial,  if  the  crime  or  offense  had  there  been  committed  ;  and  the 
re8])(H;tive  judges  and  other  magistrates  of  the  two  governments 
shall  have  power,  jurisdiction,  and  autlu)rity,  upon  complaint 
made  under  o.at.h,  to  issue  a  warrant  for  the  apprehension  of  the 
fugitive  or  person  so  charged,  that  he  may  be  brought  beforf 
such  judges  or  other  magistrates  respectively,  to  the  end  that  tlif 
evidence  of  criminality  nmy  be  hoard  and  considered  ;  and  if,  <m 
such  hearing,  the  evidence  be  deemed  sufficient  to  sustain  tlm 
cliarge,  it  shall  be  the  duty  of  the  examining  judge  or  magistrate 
to  certify  the  same  to  the  proper  executive  authority,  that  a  wai' 
rant  may  issue  for  the  surrender  of  such  fugitive." 

It  will  be  seen  that  the  trial  and  punishment  of  the  surrendered 
fugitive  for  crimes  other  than  those  mentioned  in  the  treaty,  i^ 
not  proliibited  in  terms,  and  that  fact  is  regarded  as  of  control- 
ling importance  by  those  who  hold  to  the  view  that  Ilawes  was 
not  entitled  to  the  immunity  awarded  him  by  the  court  below. 
But  if  the  prohibition  can  be  fairly  implied  from  the  language 
and  general  scope  of  the  treaty,  considered  in  connection  witii 
the  [(urposcs  the  contracting  parties  had  in  view,  and  the  natnrc 


of  tl 
like 
expr 
Pi 

of  tl 

the 

wliie 

!»; 

extn 
deiui 
fuj. 


^ 


■ 


COMMONWEALTH  v.  HAWES. 


205 


of  tlic!  subject  about  which  they  were  treating,  it  is  entitled  to 
like  respect,  and  will  be  as  sacredly  observed  as  though  it  waa 
expressed  in  clear  and  unambiguous  terms. 

Public  treaties  are  to  be  fairly  interpreted,  and  the  intention 
of  the  cimtracting  parties  to  be  ascertained  by  the  application  of 
the  biime  rules  of  construction  and  the  same  course  of  reasoning 
which  we  apply  to  the  interpretation  of  private  contracts. 

By  the  enumeration  of  seven  well  defined  crimes  for  which 
extradition  nuiy  be  had,  the  parties  plainly  excluded  the  idea  that 
demand  might  be  made  as  matter  of  right  for  the  surrender  of  a 
fugitive  charged  with  an  offense  not  named  in  the  enumeration, 
no  matter  how  revolting  or  wicked  it  may  be. 

By  providing  the  terms  and  conditions  upon  which  a  warrant 
for  the  arrest  of  the  alleged  fugitive  may  be  issued,  and  con- 
fining the  duty  of  making  the  surrender  to  cases  in  which  the 
evidence  of  criminality  is  sufficient,  according  to  the  laws  of  the 
place  where  such  fugitive  is  found,  to  justify  his  commitment 
for  trial,  the  right  of  the  demanding  government  to  decide 
finally  as  to  the  propriety  of  the  demand  and  as  to  the  evidences 
of  guilt,  is  as  plainly  excluded  as  if  that  right  had  been  denied 
by  express  language. 

It  would  scarcely  be  regarded  an  abuse  of  the  rules  of  con- 
struction, from  these  manifest  restrictions,  unaided  by  extrane- 
ous considerations,  to  deduce  the  conclusion  that  it  was  not 
conteinplated  by  the  contracting  ])arties  that  aa  extradited 
prisoner  should  under  any  circumstances  be  compelled  to  defend 
liinisflf  against  a  charge  other  than  one  upon  which  he  is  sur- 
rendered, much  less  against  one  for  which  his  extradition  cculd 
not  be  demanded.  The  consequences  to  which  the  opposite  view 
may  lead,  though  by  no  moans  conclusive  against  it,  are  never- 
theless to  receive  due  and  proper  weight. 

It  would  present  a  remarkable  state  of  the  case  to  have  one 
government  saying,  in  substance,  to  the  other,  "You  cannot 
demand  the  surrender  of  a  person  charged  with  embezzlement ; 
my  judges  or  other  magistrates  have  no  right  or  authority  upon 
Buch  a  demand,  either  to  apprehend  the  person  so  accused  or  to 
inquire  into  the  evidences  of  his  criminality,  and  if  they  should 
assume  to  do  so,  and  should  find  the  evidence  sufficient  to  sustain 
the  charge,  the  proper  executive  authority  could  not  lawfully 
issue  the  warrant  for  his  surrender.  But  you  may  obviate  this 
defect  in  the  treaty  by  resting  your  demand  upon  the  charge  of 


1 1 'I 


ii 


AMERICAN  CRIMINAL  RKl'DltTS. 


S 


.^ )  I 


It  pi 


I'     'Ml 
..     l.'l 


forgery,  imd  if  you  can  make  out  &  prima  facie  case  against  the 
fugitive,  you  may  take  hitti  into  custody,  and  then  without  a 
breach  of  faith,  and  without  violating  either  the  letter  or  spirit 
of  our  treaty,  compel  him  to  go  to  trial  upon  the  indictment  for 
the  non-extraditable  offense  of  embezzlement." 

And  if  this  indirect  mode  of  securing  the  surrender  of  persons 
guilty  of  other  than  extraditable  offenses  may  be  resorted  to,  or 
if  the  demand,  when  made  in  the  utmost  good  faith  to  secure 
the  custody  of  a  crimhial  within  the  provisions  of  tlie  treaty, 
can  be  made  available  to  bring  him  to  justice  for  an  offense  for 
which  he  would  not  have  been  surrendered,  then  we  do  not  very 
well  see  how  either  government  can  complain  if  a  lawfully  extra- 
dited fugitive  should  be  tried  and  convicted  of  a  political  offense. 
Prosecutions  for  the  crime  of  treason  are  no  more  provided 
against  by  the  treaty  than  prosecutions  for  the  crime  of  embezzle- 
ment, or  the  offense  of  bribing  a  public  officer. 

Mr.  Fish,  in  his  letter  of  May  22,  1S7C,  to  Mr.  Hoffman,  in 
reference  to  the  extradition  of  Winslow,  attempts  to  meet  this 
difficulty  by  saying,  that  "  Neither  the  extradition  clause  in  the 
treaty  of  1704,  nor  in  that  of  1842  contains  any  reference  to 
iiniminity  for  political  offenses,  or  to  the  protection  of  asylum 
for  political  refugees.  The  public  sentiment  of  both  countries 
made  it  unnecessary.  Between  the  United  States  and  Great 
Britain  it  was  not  supposed  on  either  side  that  guaranties  were 
required  of  each  other  against  a  thing  inherently  impossi!)le,  any 
more  than  by  the  laws  of  Solon,  was  a  punishment  deemed 
necessary  against  the  crime  of  parricide,  which  was  beyond  the 
possil)ility  of  contemplation." 

But  President  Tyler,  under  whose  a'^ninistratlon  the  treaty  of 
1842  was  concluded,  evidently  thought  the  guaranties  of  immu- 
nity to  political  refugees  wore  to  be  implied  from  the  treaty 
itself,  and  not  left  to  rest  alone  on  the  public  sentiment  of  the 
two  countries.  In  communicating  a  draft  of  the  treaty  to  the 
senate  for  its  ratification,  speaking  of  the  subject  of  extra- 
dition, he  said :  "  The  article  on  the  subject  in  the  proposed 
treaty  is  carefully  confined  to  such  offenses  as  all  mankind 
agree  to  regard  as  heinous  and  destructive  of  the  security  of  life 
and  property.  In  this  careful  and  specific  enumeration  of  crimes, 
the  object  has  been  to  exclude  all  political  offenses,  or  criminal 
charges  arising  from  wars  or  intestine  commotions  —  treason, 
misprision  of  treason,  libels,  desertion  from  military  service,  and 


:■,■«' 


n 


1*- 


Vi 


COMMONWEALTH  v.  II AWES. 


207 


other  offeuses  of  similar  ehuracter  are  excluded."  This  inter- 
pretation was  conteinporuneous  with  the  treaty  itself,  and  deservet 
the  higher  consideration,  from  the  fact  that  it  was  contained  in 
a  paper  prepared  by  the  then  secretary  of  state,  Mr.  Webster, 
who  represented  the  government  of  the  United  States  in  the 
nciTOtiations  from  which  it  resulted. 

It  seems  also  that  the  treaty  was  understood  in  the  same  way 
by  the  British  parliament  in  1843.  The  act  of  parliament  of 
tliat  year  passed  for  the  purpose  of  carrying  it  into  effect,  directed 
that  such  persons  as  should  thereafter  be  extradited  to  the  United 
States  should  be  delivered  "  to  such  person  or  persons  as  shall  be 
authorized  in  the  name  of  the  United  States  to  receive  the  per- 
son so  committed,  and  to  convey  him  to  the  United  States,  to  be 
tried  for  the  crime  of  which  such  person  shall  be  accused."  The 
precise  purpose  for  which  the  fugitive  is  to  be  surrendered  is  set 
out  in  exact  and  apt  language,  and  the  act  negatives  by  necessary 
implication  the  right  here  claimed,  that  the  person  surrendered 
may  be  tried  for  an  offense  different  from  tliat  for  which  he  was 
extradited,  and  one  for  which  his  surrender  could  not  have  been, 
demanded. 

The  American  executive  in  1842,  and  the  British  parliament 
in  1843,  seem  to  have  been  impressed  with  the  conviction  that 
the  treaty  secured  to  persons,  surrendered  under  its  provisions, 
an  immunity  from  trial,  for  political  offenses,  far  more  stable  and 
effectual  than  the  public  sentiment  of  the  two  countries.  Expe- 
rience had  taught  them  that,  in  times  of  intestine  strife  and  civil 
commotions,  the  most  enlightened  public  sentiment  may  become 
warjjcd  and  perverted,  just  as  it  had  taught  mankind  that  man  is 
sometimes  capable  of  committing  the  unnatural  crime  of  parri- 
cide, although  such  a  crime  seemed  impossible  to  the  great 
Athenian  law-giver.  And  this  view  was  adhered  to  by  congress 
ill  1842,  when  the  general  law  providing  for  the  surrender  of 
persons  charged  with  crime,  to  the  various  governments  with 
which  we  had  treaty  stipulations  on  that  Bul)ject,  was  passed. 
After  setting  out  the  necessary  preliminary  steps,  it  was  provided 
by  the  third  section  of  that  act,  that  "  It  shall  be  lawful  for  the 
secretary  of  state,  under  his  hand  and  seal  of  ofHcc,  to  order  the 
pereon  so  committed  to  be  delivered  to  such  person  or  persons  as 
fliail  be  authorized,  in  the  name  and  on  behalf  of  such  foreign 
government,  to  be  tried  for  the  crime  of  which  such  person  shall 
be  accused." 


1,  ' 


r  i  1 


1 


r 


208 


AMERICAN  CHIMINAL  REPORTS. 


Ill       ^•l 


111 


This,  like  tlic  act  of  parliament,  declares  the  purpose  of  the 
surrender  to  l)e,  that  the  allei^ed  offender  may  "  he  fried  for  the 
crime  of  wh'ieh  such  person  shall  he  accused.''^ 

The  maxim,  exj)ressio  unius  est  exclusio  alterius,  may,  witli 
propriety,  he  applied  to  each  of  these  acts;  and,  read  in  the  liglit 
of  that  maxim,  they  are  persuasive,  at  least,  of  the  constructiuii 
wliieh,  up  to  1848,  the  two  contracting  parties  had  placed  on  the 
tenth  article  of  the  treaty. 

The  act  of  congress  is,  in  one  view,  more  important  than  the 
British  act  of  1843.  It  does  not  rest  alone  on  the  proper  inter- 
pretation of  a  particular  treaty,  and  may  be  regarded  us  a  legisla- 
tive declaration  of  the  American  idea  of  the  fundamental  or 
underlying  principles  of  the  international  practice  of  extra- 
dition. 

The  ancient  doctrine,  that  a  sovereign  state  is  bound  by  the 
laws  of  nations  to  deliver  up  persons  charged  with  or  convictod 
of  crimes  committed  in  anothercountry,  upon  the  demand  of  the 
state  whose  laws  they  have  violated,  never  did  permanently 
obtain  in  the  United  States.  It  was  supported  by  jurists  of  dis- 
tinction, like  Kent  and  Story,  but  the  doctrine  has  long  pre- 
vailed with  ns,  that  a  foreign  government  has  no  right  to  demand 
the  surrender  of  a  violator  of  its  laws,  unless  we  are  under  obli- 
gations to  make  the  surrender  in  ol)edience  to  the  stipulations  of 
an  existing  treaty.  (Lawrence's  Wheaton  on  International  Law, 
233,  and  authorities  cited.)  As  said  by  Mr.  Cushing,  in  the  mat- 
ter of  Hamilton,  a  fugitive  from  justice  in  the  state  of  Indiana, 
"It  is  the  established  rule  of  the  L'^nited  States  neither  to  grant 
nor  to  ask  for  extradition  of  criminals  as  between  us  and  any 
foreign  government,  uidess  in  cases  for  which  stipulation  is 
made  by  express  convention."  (Opinions  of  Attorney-generals, 
vol.  6,  431.) 

From  the  treatise  of  Mr.  Clarke  on  the  sui)ject  of  extradition, 
we  feel  authorized  to  infer  that  this  is  the  English  theory ;  l)Ut 
whether  it  is  or  not,  that  government  certainly  would  not,  in  the 
absence  of  treaty  stipulations,  surrender  fugitives  to  a  govern- 
ment Avhich,  like  ours,  will  refuse  to  reciprocate  its  acts  of 
comity  in  this  respect. 

The  right  of  one  government  to  demand  and  receive  from 
another  the  custody  of  an  offender  who  has  sought  asylum  upon 
its  soil,  depends  upon  the  existence  of  treaty  stipulations  between 
them,  and  in  all  cases  is  derived  from  and  is  measured  and 


5  iti  ■ 


COMMONWKALTH  i-.  HAWES. 


20!) 


restricted  by  tlie  pi-uvisions,  express  and  implied,  of  the  treaty. 
Tlie  fugitive  I[a\ves,  hy  butjoiniuf;  an  inhabitant  of  the  Dominion 
of  Caiiiiila,  secured  the  proteetion  of  Britisli  hiws,  and  we  could 
only  (leiuaiid  his  surrender  in  virtue  of  our  treaty  with  that  gov- 
erunient,  and  we  held  him  in  custody  for  the  purposes  contem- 
plated by  that  treaty,  and  for  none  other.  He  was  surrendered 
to  the  authorities  of  Kentucky,  to  be  tried  upon  three  several 
indictments  for  forgery.  The  Canadian  authorities  were  of 
opinion  that  the  evidences  of  his  criminality  were  sufficient  to 
justify  his  commitment  for  trial  on  said  charge.  Ono  of  them 
the  commoinvealth  voluntarily  abandoned.  He  was  tried  upoa 
the  remaining  two,  and  found  not  guilty  in  each  case  by  the 
jury,  and  he  now  stands  acquitted  of  the  crimes  for  which  he 
'.as  extradited.  It  is  true,  he  was  in  court,  and  in  the  actual 
custody  of  the  officers  of  the  law  when  it  was  demanded  that  he 
should  be  compelled  to  plead  to  the  indictment  for  embezzle- 
ment. But  the  s])ecific  purposes  for  which  the  protection  of  the 
Ih'itish  laws  had  been  withdrawn  from  him,  had  been  fully 
iiceoinplished,  and  he  claimed  that,  in  view  of  that  fact,  the 
])eriod  of  his  extradition  had  been  determined ;  that  his  further 
detention  was  n<jt  t>uly  unauthorized,  but  in  violation  of  the 
stipulations  of  the  treaty  umler  which  he  was  surrendered,  and 
that  the  commonwealth  could  not  take  advantage  ot"  the  custody 
ill  which  he  was  then  wrongfully  held,  to  try  and  punish  him  for 
a  non-extraditable  otfeiise. 

To  all  this  it  was  answered,  that  "  an  offender  against  the  jus- 
tice of  his  country  can  accpilre  no  rights  by  defrauding  that  jus- 
tice;" that  "between  hiiu  and  the  justice  he  has  offended,  no 
rights  accrue  to  the  offender  by  flight.  lie  remains  at  all  times, 
and  everywhere  liable  to  be  called  to  answer  to  the  law  for  his 
violations  thereof,  provided  he  comes  within  the  reach  of  its 
arm."  Such  is  the  doctrine  of  the  cases  of  Caldwell  and  Law- 
rence (8  and  13  Blatchford's  Reports),  and  of  the  case  of  Lagrave 
(59  New  York).  And  if  the  cases  of  Caldwell  and  Lawrence 
could  not  be  freed  from  the  comj)lications  arising  out  of  the  resi- 
dence of  the  prisoners  within  the  territorial  limits  of  the  British 
cnjwn,  and  the  fact  that  we  received  them  from  the  authorities 
of  the  British  government,  in  virtue  of  and  pursuant  to  treaty 
stipulations,  it  would   be  sound  doctrine  and  indisputable  law. 

Hut  did  Caldwell  or  Lawrence  pome  within  the  reach  of  the 
anus  of  our  laws^  They  were  surrendered  to  us  by  a  foreign 
Vol.  ir.— U 


n 


i;)1 


; 


;i*:. 


i 


AMERICAN  CRIMINAL  REPORTS. 


sovereign,  to  be  tried  for  specific  crimes,  and  were  forcibly 
brougbt,  for  the  purposes  of  those  trials,  within  the  jurisdic- 
tion of  our  courts.  And  the  point  in  issue  was  not  whether 
the  prisoners  had  secured  immunity  by  flight,  but  whether  the 
court  could  })roceed  to  try  them  without  disregarding  the  good 
faith  of  the  government,  and  violating  the  "supreme  law." 

The  legal  right  of  a  judicial  tribunal  to  exercise  jurisdiction  in 
a  given  case  must,  from  the  nature  of  things,  be  open  to  question 
at  some  stage  of  the  proceeding,  and  we  find  It  difficult  to  con- 
ceive of  a  person  charged  with  crime  being  so  situated  as  not  to 
be  permitted  to  challenge  the  power  of  the  court  assuming  the 
right  to  try  and  punish  him. 

The  doctrine  of  the  cases  of  Caldwell  and  Lawrence  has  been 
sanctioned  by  several  prominent  British  officials  and  lawyei-s,  and 
has  seemingly  been  acted  upon  by  some  of  the  Canadian  courts, 
and  in  one  instance  [that  of  Herlbrown]  by  an  English  court. 
We  say  seemingly,  for  the  reason  that  in  Great  Britain  treaties 
are  regarded  as  international  compaets,  with  which,  in  general,  the 
courts  have  no  concern.  They  are  to  be  carried  into  effect  by 
the  executive,  and  the  courts  are  subject  to  executive  control  to 
the  extent  necessary  to  enable  it  to  prevent  the  breach  of  treaty 
stipulations  in  cases  of  this  kind.  Ifence,  when  a  party  charged 
with  crime  claims  immunity  from  trial  on  account  of  the  provi- 
sions of  the  treaty  under  which  he  has  been  extradited,  he  must 
apply  to  the  executive  to  interfere  through  the  law  oilicers  of  the 
crown  to  stay  the  action  of  the  court,  otherwise  it  will  not  at  his 
instance  stop  to  in(|uire  as  to  the  form  of  his  arrest,  or  as  to  the 
means  by  which  he  was  taken  into  custody. 

But  a  different  rule  prevails  with  ns,  because  our  government 
is  differently  organized.  Neither  the  federal  nor  state  executive 
could  interfere  to  prevent  or  suspend  the  trial  of  Ilawes. 
Neither  the  commonwealth's  attorney  nor  the  court  was  to  any 
extent  whatever  subject  to  the  direction  or  control  cither  of  the 
President  or  the  Governor  of  the  commonwealth.  But  the 
treaty  under  which  the  alleged  immunity  was  asserted  being  ])art 
of  the  supreme  law,  the  court  had  the  power,  and  it  was  its  duty 
if  the  claim  was  well  founded,  to  secure  to  him  its  full  benefit. 
The  question  we  have  under  consideration  has  not  been  passed 
on  by  the  Supremo  Court  of  the  United  States,  and  it  therefore 
remains  so  far  an  open  one,  tJuit  wo  feel  free  to  decide  it  in 


COMMON  WEALTH  r.  HA  WES. 


211 


accordance  with  tlie  result  of  our  own  investigations  and  reflec- 
tions, 

Mr.  William  Boacli  Lawrence,  in  the  I'tth  vol.,  p.  96,  Albany 
Law  Journal,  on  the  authority  of  numerous  European  writers, 
said,  "All  the  right  which  a  power  asking  an  extradition  can 
possibly  derive  from  the  surrender  must  be  what  is  expressed  in 
thu  treaty,  and  all  rules  of  interpretation  require  the  treaty  to  be 
strictly  construed ;  and  consecjuently,  when  the  treaty  prescribes 
the  olfenses  for  which  extnidition  can  be  made  and  the  peculiar 
testimony  to  be  recpiired,  the  sufficiency  of  which  must  be  certi- 
fied to  the  executive  authority  of  the  extraditing  country,  the 
state  reciMving  the  fugitive  has  no  jurisdiction  whatever  over 
him  excc[)t  for  the  specified  crime  to  which  the  testimony  applies. 

Tills  is  the  philosophy  of  the  rule  prevailing  in  Franco.  The 
French  minister  of  justice  in  his  circular  of  April  15,  1S4:1,  said, 
''The  extradition  declares  the  offense  which  leads  to  it,  and  this 
offense  alone  ought  to  be  iiujuired  into." 

The  rule  as  stat'^d  by  the  German  author,  Hef ter,  is  that  "The 
indiviihial  whose  uxtradition  has  been  granted  cannot  be  prose- 
cuted nor  tried  for  any  crime  except  that  for  which  the  extradi- 
tion has  been  obtained.  To  act  in  any  other  way,  and  to  cause 
hiui  to  be  tried  for  other  crimes  or  misdemeanors,  would  be  to 
violate  the  mutual  principle  of  asylum  and  the  silent  clause  con- 
tained by  implication  in  every  extradition." 

And  when  President  Tyler  expressed  tlie  opinion  that  the 
treaty  of  1842  could  not  be  used  to  secure  the  trial  and  punish- 
ment of  persons  charged  with  treason,  libels,  desertion  from 
military  service,  and  other  like  offenses,  and  wlien  the  British 
parliament  and  the  American  congress  aesumed  to  provide  that 
the  persons  extradited  by  their  respective  govermnents  should  bo 
Burrentlered  "to  he  tried  for  the  t'rime  of  which  such  person 
shaU.  he  so  accused,''^  this  dominant  principle  of  modern  extradi- 
tion was  both  recognized  and  acted  upon. 

This  construction  (»f  the  10th  article  of  the  treaty  is  consistent 
with  its  language  and  provisions,  and  is  not  only  in  harmony 
with  the  opinions  and  modern  practice  of  the  most  enlightened 
nations  of  Kiii'ope,  and  just  and  proper  in  its  application,  but 
essential  to  render  it  absolutely  certain  that  the  treaty  can  not  be 
converted  into  an  instrument  by  which  t(»  obtain  the  custody  and 
secure  the  punishment  of  political  oll'enders. 

ILiwes  placed  himself  under  the  guardianthip  of  the  British 


H  ■ 


i  .! 


I   t 


■  ■  '  '  i 

■ '        ■ '!  *' 

■i    "'  '        '  " '  ■ 

1  ■■ 

lift'?.:'- 


I; '.  .  ? ' 


;M:-U 


#    ^1 


212 


AMERICAN  CRIMINAL  REPORTS. 


laws  by  becoming  an  inhabitant  of  Canada.  We  took  him  from 
the  protection  of  tliose  laws  under  a  special  agreement,  and  fur 
certain  named  and  designated  purposes.  To  continue  him  in 
custody  after  the  accomplishment  of  those  purposes,  and  with  the 
object  of  extending  the  criminal  jurisdiction  of  our  courts 
beyond  the  terms  of  the  special  agreement,  would  be  a  plain  vio- 
lation of  the  faith  of  the  transaction,  and  a  manifest  disregard  of 
the  conditions  of  the  extradition.  lie  is  not  entitled  to  perscmal 
immunity  in  consequence  of  his  flight.  Wo  may  yet  try  hiiu 
under  each  and  all  of  the  indictments  for  embezzlonient  and  for 
uttering  forged  paper,  if  he  comes  voluntarily  witliin  the  juris- 
diction of  our  laws,  or  if  we  can  reacli  him  through  the  extradi- 
tion clause  of  the  federal  constitution,  or  through  the  comity  of 
a  foreign  government.  But  we  could  not  add  to  or  enlarge  tlio 
conditions  and  lawful  consecpiences  of  his  extradition,  nor  extend 
our  special  and  limited  right  to  hold  him  in  custody  to  answer  to 
tlie  three  cliarges  of  forgery,  for  the  purpose  of  trying  liini 
for  offenses  other  than  those  for  which  he  was  extradited. 

We  conclude  that  the  court  below  correctly  refused  to  try 
TIawes  for  any  of  tlie  offenses  for  which  he  stood  indicted,  except 
the  three  charges  of  forgery  mentioned  in  the  warrant  of  extra- 
dition, and  that  it  properly  discharged  him  from  custody. 

The  order  appealed  from  is  approved  and  affirmed. 


Note.— On  tlic  12th  day  of  February,  187(i,  E.  D.  Winvlow,  of  Roston,  was 
arrested  in  London  on  a  teleffrain  from  Hamilton  Fish,  tlien  secretary  of 
.state,  to  await  a  requisition  for  forgeries.  A  police  officer  immediately  .s.iiled 
for  En.gland  provided  with  tlie  necessary  |)apers  to  secure  Winslow's  extra- 
dition. Before  the  nMjuisition  for  his  surrender  was  made,  the  Urilish  minis- 
ter at  Washington  su,u',irested  to  the  secretary  of  state  tiiat  the  demand  t'oi 
Winslow's  surrender  would  iirohahly  lie  refused  unless  a  slii)ulation  was 
entered  into  that  he  .shoidd  not  he  tried  iipon  any  offense  other  thi.n  thai  lor 
which  he  was  extradited  ;  whereupon  the  .'secretary  of  stale  immedialcly 
instructed  Oen.  Schenck,  then  the  American  minister  in  England,  to  de<-!inu 
to  enter  into  any  such  stipidalion,  provided  it  should  be  re(pMri'd  by  ilio 
British  government.  Winslow's  extradition  was  formally  demanded  and  the 
necessary  papers  and  proofs  presented.  The  Ihitish  government  refu.scd  to 
surrender  him  unless  the  United  Slates  would  give  assurances  thai  Winslow 
should  not  be  tried  for  any  ollense  nol  named  in  the  warrant  of  extradition. 
A  long  diplomatic  correspondence  ensued  between  the  two  governments,  and 
neither  of  tliem  receding  from  its  jwsition,  Winslow,  after  several  remands, 
was  disciiarged  from  custody  on  htibran  covpun  on  the  17lh  of  .June,  In  a 
mes,sage  to  congress  on  the  !i<lth,  President  Grant  aniioun<;ed  that  the  United 
States  considered  the  extradition  clause  of  tlie  Ashburlon  treaty  practically 
abrogated  by  tlie  action  of  the  Hrltish  government  in  Winslow's  case,  ami 


■' 


COMMONWEALTH  v.  IIAWES. 


2i:"{ 


that  tlicreaftcr  the  ffovcrnmcnt  would  not  make  or  entertain  demands  for  Ihe 
extradition  of  criminals,  so  long  as  Great  Britain  should  insist  upon  its  posi- 
tion. On  the  4tii  of  April  of  the  same  year,  pending  the  negotiations  in 
AVinslow's  case,  one  Maraiue  Smith  was  arrested  and  committed  to  jail  in 
f?uii(l\vich,  Ontario,  to  await  extradition  proceedings  for  a  murder  in  Detroit. 
On  tlie  nth  of  April  the  governor  of  Michigan  requested  the  secretary  of 
stale  10  take  proper  steps  to  secure  his  extradition,  but  he  declined  to  make  a 
(Iciiiaiid.  On  the  3()th  of  June  a  fugitive  from  justice  from  Ohio  was  arrested 
and  committed  to  Jail  at  Ilamiltou,  Ontario,  to  await  extradition  proceedings, 
Imt  Secretary  Pish  j-efused  to  make  any  demaud  for  his  surrender,  as  he  liad 
aireiidy  done  in  the  case  of  ^laraine  Smitli.  In  the  correspoudcnc^e  which 
will  lie  found  reported  at  large  in  the  report  on  Foreign  Relations,  1876-1877, 
many  cases  were  cited  sustaining  the  position  of  the  American  government. 
Tlie  secretary  refers  to  the  case  of  Ileilbronn,  who  was  extradited  to  Great 
Britain  for  forgery,  and  having  been  acquitted  of  that  charge,  was  tried  on  a 
cliarse  of  larceny  and  convicted.  In  the  case  of  Von  Earnam  (Upper  Canada 
Rejiorts,  4  c,  p.  288),  who  had  been  extradited  for  forgery,  an  application 
havini;-  been  made  for  his  discharge  (l)efore  trial)  on  the  ground  that  the  only 
oll'ense  lie  had  committed  was  false  pretenses,  the  application  was  refused, 
the  cliief  justice  .saying  that,  "  Iteing  in  custody,  he  is  liable  to  be  prosecuted 
for  any  olfense  which  llie  facts  may  support."  In  Paxton's  case  (10  Lower 
Canada  Jurist,  212,  11,  !t."")2),  to  an  indictment  for  uttering  forged  paper,  the 
respondent  pleaded  that  he  had  been  extradited  for  forgery.  The  plea  was 
held  i)ad,  and  Paxtou  was  tried  anil  convicted,  and  the  conviction  was 
allirnied  on  appeal.  In  U.  8.  r.  UiddwM  (8  Blatchf.  C.  C,  131),  the  prisoner 
liaviiii;' been  extradited  f!')m  Canada  on  a  charge  of  forgery,  was  p\it  upon 
trial  for  liribinii'  a  nn-enue  olllcer.  He  pleaded  to  the  jurisdiction  setting  up 
the  fads.  On  demurrer  to  the  plea,  the  i)lea  was  held  bad,  the  court  saying 
tliat,  "While  abuse  of  extradition  iiroceedings  and  %vant  of  good  faith  in 
reverting  lo  them,  doubtless  constitute  a  good  cause  of  complaint  between 
governnients.  siicb  complaints  do  not  form  a  proper  subject  of  investigation 
in  tlie  (durts."  Tlu^  llritlsh  government  ha.'ing  been  appealed  to  to  inter- 
vene nn  Caldwell's  behalf,  replied  May  10,  1871,  "  There  is  nothing  in  the 
cdiivention  which  wonhl  pre(!lii<le  the  indictment  of  the  petitioner  in  the 
United  Stales  for  any  additional  oll'en.se  which  is  not  enumerated  in  the  con- 
vention, so  long  as  such  jtroccedings  were  not  substituted  for  proceedings 
iiuiiinst  him  on  liie  charge  by  reason  of  which  lie  was  surrendered. 

Oct.  27,  187(»,  tlie  llritish  government  receded  from  the  position  it  had 
taken  in  llie  Winslow  case,  and  the  llritish  minister  at  Washington  notified 
Secretary  Fish  tiiai  I'ujitives  who  came  within  the  terms  of  the  treaty  would 
be  surrendered  without  the  siijiulation  which  had  previou.sly  been  insisted 
upon.  Since  that  time  the  exiradilion  clause  of  the  treaty  of  1842  has  been 
carried  out  as  usual.  So  far.  therefore,  astlds  is  a  i)olilical  and  diplomatic, 
and  not  n  legal  question,  it  must  he  regarded  as  settled  in  favor  of  the  right 
1(1  try  the  fugitive  for  otfenses  not  named  in  Ihe  warrant  of  extradition.  But 
a  lieaty  is  as  much  a  part  of  the  law  of  the  land  as  a  statute  or  Ihe  conslllii- 
tidii,  and  the  judicial  hrancii  of  the  govenuuenl  being  co  (irdinate  with  the 
e\e(  iilive  and  legislativis  branches,  luid  all  the  judicial  power  belug  vested  in 
the  courts,  the  courts  are  not  bouiul  by  tlu!  excciilivc  intcrprelallon  of  the 
treaty,  but  must  llu'in.selves  interpret  it  in  all  cases  properly  before  them  in 
which  lis  scope  and  meaning  properh-  come  in  <iuestion. 


i  i.  ,«<,.,« 


\.ii^ 


I,),. 


«  " 


214 


AMKRICAN  CRIMINAL  REPORTS. 


In  Adi-iancc  v.  La^nive,  51)  N.  Y.,  110,  the  defendant  was  arrested  on  civil 
process  for  ii  wrongful  conversion.  He  moved  to  vacate  the  order  of  arrest 
on  the  ground  tliat  he  had  been  brought  into  New  York  on  a  warrant  of 
extradition  from  France,  and  tliat  lie  was  arrested  on  the  civil  process  before 
he  had  had  an  opportunity  of  returning  to  France  after  the  proceedings  in  the 
matter  for  which  he  was  extradited  had  terminated.  The  defendant  also 
alleged  that  the  extradition  proceedings  were  fraudulent,  and  they  were  taken 
for  the  purpose  of  bringing  him  within  the  jurisdiction  of  the  courts  of  New 
York,  that  he  might  be  arrested  and  detained  on  civil  process. '  The  motion 
was  denied,  and  on  appeal  to  the  court  of  appeals,  it  W4is  held  to  have  hoeu 
properly  denied.  The  court  say,  "  While  we  appreciate  the  justice  and  fair- 
ness in  the  abstract  of  the  principle  *  *  *  in  view  of  the  authorities 
referred  to,  and  in  the  absence  of  any  legal  principle  on  which  it  can  rcsi,  we 
do  not  feel  justified  in  holding  that  there  is  such  an  implied  obligation  which 
can  be  enforced  by  the  courts,  at  the  instance  of  the  defendant,  as  will  pro- 
vent  a  prosecution  for  other  offenses  or  civil  liabilities." 

This  case  and  the  case  of  U.  H.  v.  Caldwill,  above  cited,  are  followed  and 
approved  in  U.  S.  v.  Lawrence,  13  Blatchf.,  205.  In  Williams  v.  Bacon,  10 
Wend.,  G36,  the  defendant  moved  to  set  aside  a  capins  in  a  civil  case  imder 
which  he  had  been  arrested  and  held  to  bail,  on  the  ground  that  he  had  been 
brousiht  from  Massachusetts  on  an  extradition  warrant  for  false  pretcn.ses,  and 
that  he  was  privileged  from  arrest  on  any  other  charge  until  he  had  an  oppor- 
tunity to  return  to  Massachu.setts.  The  motion  was  denied,  but  the  court 
(Nelson,  J.,  delivering  the  opinion)  say,  "  There  is  no  pretense  that  the  crimi- 
nal proceeding  in  this  case  was  a  mere  pretext  to  bring  the  defendant  witliia 
the  jurisdiction  of  the  court  for  tiie  purpose  of  proceeding  against  hiiu 
civiliter.  The  argument  of  the  defendant's  counsel  in  this  particiilar  is  not 
supported  by  the  facts  of  the  case.  Had  such  fact  api)eared,  the  defendant 
would  have  been  discharged.     As  it  is,  the  motion  is  denied  with  costs." 

Against  these  autliorities,  and  in  support  of  the  doctrine  of  Coin.  v.  Ilnwi's, 
can  be  cited  the  great  authority  of  Judge  Cooley,  the  author  of  Cooley's  Con- 
stitutional Limitations,  That  learned  juri.st  in  an  article  pul)lislied  in  tlie 
Princeton  Review  of  January,  1879,  uses  the  following  language:  "  To  obtain 
the  surrender  of  a  man  on  one  cluuge  and  then  put  him  upon  trial  on  anotlicr, 
is  a  gross  abuse  of  the  constitutional  compact.  Wo  believe  it  to  be  a  viola- 
tion also  of  legal  principles.  It  is  u  general  rule,  that  where,  by  comimlsiou 
of  law,  a  man  is  brought  within  the  jurisdiction  for  one  purpose,  his  pnscnre 
shall  not  be  takeu  advantage  of  to  subject  him  to  legal  demands  or  Iciral 
restraint  for  another  purpose.  The  legal  privileges  from  arrest  wlien  one  is 
in  the  performance  of  a  legal  duty  away  from  his  homo  rest  upon  this  rule, 
and  tljey  arc  merely  tlio  exi)ressions  of  reasonable  exception  from  imr.iir 
advantages.  The  reason  of  the  rule  applies  it  to  tho.se  cases:  it  should  lie 
held,  as  it  recently  has  been  in  Kentucky  (6W.  t'.  Ilawfn),  that  the  fimilive 
surrendered  to  one  clmrgo  is  ('xemi)t  from  prosecution  upon  any  other,  lb'  is 
within  the  slate  by  compulsion  of  law  upon  a  single  accusation;  ho  has  a  right 
to  have  that  disposed  of,  and  then  to  depart,  in  peace." 


EX  PAiiTE  hose>;blatt. 


215 


Ex  Pakte  Rosenblatt. 

(51  Cal..  285.) 

Extradition:     Fugitives  from  justice —  Criminal  vs.  eivil  process. 

Although,  under  the  constitution  of  the  United  States  and  the  act  of  con- 
gress, a  state  is  only  hound  to  surrender  a  fugitive  from  justice  for  whom 
a  requisition  has  been  issued  by  the  governor  of  a  sister  state,  yet  the 
legislature,  upon  principles  of  comity,  may  provide  for  tlie  arrest  and 
deleiilioii  of  such  fui^itive  before  the  reciuisition  lias  arrived,  and  may 
ace<)nii)any  tin;  act  for  the  arrest  by  as  many  conditions  (favorable  to  tlie 
alletred  fugitive)  as  to  liis  mode  of  arrest  and  examination  as  it  may  see 
tit,  and  such  act  must  bo  strictly  complied  with. 

An  otHcer,  armed  with  process  for  tlie  arrest  of  a  person  in  a  civil  suit,  can- 
not talic  tlie  defendant  from  the  hands  of  another  officer  who  holds  him 
on  a  warrant  issued  in  a  criminal  case;  nor  can  he  liold  such  person  as 
against  one  aimed  with  a  crimitial  warrant,  and  the  same  rule  applies  to 
a  proceeding  under  a  requisition  from  tlie  governor  of  another  state 
asking  for  his  return  as  a  fugitive  from  justice. 

On  tlie  20tli  of  Jamiarv.  1876,  Rosenblatt  was  arrested  in  San 
Francisco  l>y  the  chief  t)f  jiolice  on  a  warrant  issued  by  the  jndge 
of  the  police  court,  char<jin<i;  him  with  beinj^  a  fugitive  from 
justice,  and  with  having  Hed  from  the  city  and  state  of  N^ew 
York,  where  lie  had  committed  the  crime  of  obtaining  money 
under  false  pretenses.  The  judge  continued  the  hearing  of  the 
case  from  time  to  time  utitil  the  29th  of  January.  In  the  mean 
time,  on  the  25th  of  January,  A.  Fleishacker  commenced  a  civil 
suit  against  Ro,s;eiil)latt  to  recover  $5,000,  due  him  on  a  promis- 
sory note,  and  alleged  that  Rosenblatt  had  dit;po.sed  of  liis  prop- 
erty to  defraud  his  creditors,  and  was  about  to  depart  from  the 
state,  and  obtained  from  the  judge  of  the  twelfth  district  court, 
an  order  for  his  arrest.  The  sheriff  attempted  to  serve  the 
order,  but  the  chief  of  police  refused  to  surrender  the  prisotier. 
On  the  28th  of  .lanuary,  the  governor  of  the  state  issued  a  war- 
rant for  the  extradition  of  Rosenblatt  on  a  requisition  of  the 
governor  of  New  York.  On  the  same  day  Fleishacker  applied 
to  the  Snpreme  Court  for,  and  obtained,  a  writ  of  hnhas  (•orj>i/.s 
for  the  discharge  of  Rosenblatt,  and  in  his  application  alleged 
that  Rosenblatt's  detention  by  the  chief  of  police  was  illegal, 
because  more  than  six  days  had  expired  since  his  arrest  and  he 
had  not  luid  an  examination,  and  that  his  detention  was  also 
illegal  because  the  slteriff  was  entitled  to  his  cnstody  by  virtue 


IPI 

"^n 

B^'^ 

w  % 

L^ 

ti   (      ^ 

||Hi 

I     ^' 

m 

SI    ' 

'-'IH 

1' 

:■ 

216 


A.AIKHICAN  tKIAIINAL  ilKI'OHTS. 


' ,  I  ' 
Ml 
I"' 
1^^ 


of  the  ordei-  of  arrest  in  tlic  civil  suit,  and  tliat  the  chief  of 
police  was  about  to  deliver  him  to  the  person  who  was  authorized 
to  carry  him  out  of  the  state.  The  statute  of  California  for  tlie 
arrest  of  fugitives  from  justice  provides  that  a  person  accused  of 
treason,  felony  or  other  crime,  who  has  fled  from  justice  and  is 
found  in  this  state,  must,  on  demand  of  the  executive  authority 
of  tlv^  '*  '■•^  from  which  he  fled,  be  delivered  up  by  the  governor 
«  f  ^h  it  to  be  removed  to  the  state  having  jurisdiction  of  the 
oflei"  It  L'len  further  provides  that  a  magistrate  may  issue  a 
warrant  for  tlie  arrest  of  the  alleged  fugitive,  and  that,  if  it 
appe  ir..  on  exa.n'*iition,  that  the  accused  has  committed  th(^ 
crime  allegi  li,  tin;  nngis.'-rate  must  commit  him  for  such  time  as 
he  may  deem  reasoijable  to  enable  him  to  be  arrested  under  the 
warraTit  of  tlie  executive  of  this  state  on  a  requisition  of  tlie 
executive  of  the  state  in  which  the  offense  was  cotnmitted,  uidess 
he  give  bail.  It  is  further  provided,  in  section  861  of  the  Penal 
( 'ode,  under  the  general  head  of  examination  of  defendants  and 
holding  them  to  answer,  that  the  postponement  of  an  examina- 
tion cannot  be  for  more  than  two  days  at  a  time,  nor  for  more 
than  six  days  in  all,  unless  by  consent  or  on  motion  of  the 
defendant.  When  Rosenblatt  was  arrested,  the  requisition  of 
the  governor  of  New  York  had  not  arrived.  The  act  concern- 
ing fugitives  from  justice  (Penal  Code,  section  15.50)  provides 
that  the  proceedings  for  the  arrest  and  commitment  of  fugitives 
are  in  all  resj>ects  similar  to  those  contained  in  the  code  for  the 
arrest  a!id  commitment  of  persons  charged  with  offenses  com- 
mitted in  this  state.  The  latter  act  permits  magistrates  to  issue 
warrants  for  the  arrest  of  fugitives  before  a  requisition  has 
arrived,  upon  alKdavit  that  a  crime  has  been  committed. 

Alexandi)'  Cainj>hi'/f,  For  tlie  ]X!titioner. 

/>.  J.  jVnrjJiy,  against  tiie  discharge. 


Vtx  THK  coruT,  Mc  KrxsTKY,  .1.  Under  the  constitution  of  the 
United  Statics  and  the  act  of  congress,  a  state  is  bound  to  surren- 
der a  fugitive  for  whom  a  proper  rerjuisition  has  been  issued  by 
the  governor  of  the  sister  state.  The  iict  of  the  legislature  was 
passed  as  auxiliary  to  the  jn'oeei'dings,  under  the  constitution  and 
act  of  congress,  but  is  based  solely  on  ])rinciples  of  comity;  and 
the  legislature  had  power  to  atHx  as  many  coiulitions  as  to  the 
mode  in  which  the  ])reliminary  arrest  and  examination  should  be 
conducted  as  the  legislature  deemed  proper. 


<    illM'. 


EX  PARTE  JILZ. 


217 


We  are  inclined  to  the  belief  tliafc  a  person  thus  arrested,  with 
a  view  to  lii.s  being  surrendered  on  requisition  expected  to  arrive, 
is  entitled  to  his  discharge  if  his  examination  is  not  brought  on 
before  the  magistrate  within  six  days.  The  act  of  the  legisla- 
ttirc  which  authorized  such  ])reliminary  arrest  should  bo  strictly 
complied  with,  but  we  do  not  think  it  necessary  to  decide  that 
question  in  the  present  case. 

This  is  not  a  case  in  which  writs  have  been  issued  both  from  a 
state  court  and  a  Un'ted  States  court,  where  the  officer  of  the 
state  or  federal  court,  as  the  case  may  be,  first  serving  the  writ  ia 
entitled  to  retain  possession  of  the  body. 

"We  think,  reference  being  had  to  the  obligatioji  imposed  by 
the  constitution  of  the  United  States,  that  the  same  rule  is  appli- 
cable to  a  proceeding  under  a  requisition  fntm  the  governor  of 
anotlier  state  as  applies  when  the  que.-' ion  is  between  a  criminal 
proceeding  initiated  in  this  state  and  a  civil  action.  In  such  case 
the  interest  of  the  private  suitor  who  has  caused  a  defendant  to 
be  arrested  must  yield  to  the  paramount  interest  of  the  people 
of  the  state. 

Ordered  that  H.  II.  Ellis,  chief  of  police  of  the  city  and 
county  of  San  Francisco,  state  of  California,  be,  and  he  is  hereby 
authorized  to  serve  the  warrant  of  arrest  issued  by  the  governor 
of  tlie  state  of  California,  upon  the  requisition  of  the  governor 
of  the  state  of  New  York,  for  the  surrender  and  delivery  of 
Rosenblatt,  and  to  deliver  said  Ilosenblatt  to  Richard  O'Connor, 
agent  of  the  state  of  New  York ;  and  the  sheriff  of  said  city 
and  county  is  hereby  authorized  and  directed  to  surrender  and 
deliver  the  body  of  said  Samson  Rosenblatt  into  the  custody  of 
said  ir.  II.  Ellis,  chief  of  police  as  aforesaid,  for  the  purposes 
aforesaid. 


■•;s 


m 


Ex  PAUrR  JiLZ. 

(04  Mo.,   205  ) 
n.\UK.\a  Coiu'us  :    lies  ailjudicata. 

Where  a  person  coiillncd  liy  viitun  of  a  soiitcnco  upon  conviction  for  crime  is 
discbiiriri'd   Iroin  siicli  (.'(iiiliiicnicnt  on  /utiicdx  eorpvn,  by  u  judjije  linvini; 
juri.siliction  to  ({(ilurniiiio  Mid  iniillcr,  on  llie  uroind  of  the  nllt',u;od  illogiil 
ily  of  tlie  sontcnee,  the  dlsohiirgo  being  u  judgment  in  favor  of  personal 
liberty,  is  flniil  and  coneluMivc. 


.i 

Tl, 


i  1"  I  " 


218 


AMERICAN  CRIAIINAL  REPORTS. 


'.H 


m 


I 


In  such  II  case  the  Suprcinc  Court  has  no  jui'isdiction  to  re  rxMiniiu'  Ilia 
grounds  on  which  n  discliargo  was  gnintod,  and  if  the  defendant  is  auiiin 
arrested  on  tlie  same  conviction,  the  Suiireme  Court  will  release  tiim  on 
habeas  corpus,  on  the  ground  that  his  right  to  be  set  at  liberty  under  thul 
couvictiou  is  rcH  ai{judic<tla. 

Norton,  J,  Tlie  petitioner,  on  the  12tli  of  August,  1876,  waa 
tried  in  the  St.  Louis  court  of  criminal  correction  and  was  con- 
victed ot  criminal  abortion,  and  was  sentanced  by  said  court  to 
imprisonment  in  the  St.  Louis  county  jail  for  the  terra  of  one 
year  and  to  the  payment  of  a  lino  of  $500.  Under  said  sentence 
he  was  committed  to  the  jail  of  said  county,  and  there  remained 
until  the  22d  day  of  August,  "!  876,  when  he  applied  to  James 
J.  Liudley,  a  judge  of  the  circuit  court  of  St.  Louis  county,  for  a 
writ  of  habeas  corpus,  which  was  by  said  judge  issued,  and  on  a 
heai'ing  of  tlie  same,  the  said  Jilz  was  discharged  from  liis  said 
imprisonment  on  the  same  day,  on  the  ground  that  the  court  of 
criminal  correction  liad  exceeded  its  power  in  sentencing  hiin, 
Jilz,  to  confinement  in  the  county  jail  of  St.  Louis  county  for 
one  year,  and  that  the  sentence  under  it  and  the  commitment 
were  void.  After  said  Jilz  was  thus  discharged,  ho  was  again, 
on  the  29th  day  of  September,  1876,  recommitted  to  the  jail  of 
St.  Louis  county  on  a  re-issue  of  the  same  commitment  upon 
which  he  was  originally  imprisoned,  and  from  M'hich  he  had 
been  discharged  by  Judge  Liiidley. 

Petitioner  Jilz  now  seeks  to  be  discharged  from  this  last 
imprisonment  on  the  following  grounds : 

1st.  Hecause  the  judgment  and  sentence  of  said  court  of 
criminal  correction  was  void,  in  this,  that  under  tlie  law 
api)licable  to  St.  Louis  (?ou!ity,  said  court  only  had  jurisdiction  to 
sentence  him  to  an  impris(»nmcnt  for  the  period  of  six  months  in 
the  city  work-hoiise  of  the  city  of  St.  Louis. 

2d.  Because  having  been  onco  discharged  on  hahran  corpus 
by  Judge  Lindloy,  who  had  power  to  hear  and  determine  tiie 
legality  of  his  imprisonment,  his  re-arrest  and  ro-iinprisonment 
on  the  re-issue  of  the  same  commitment  were  illcgiil  and  void. 

If  the  Bctiond  reason  assiyiied  1)V  petitioner  for  his  discharirc  bo 
well  founded,  it  will  dispense  with  a  consideration  of  the  liist. 
Our  attention  will,  therefore,  be  directed  to  it. 

It  is  not  deni(!d  but  that  Judge  Lindley  had  the  legal  right  to 
issue  the  writ  of  Intheas  corjmti  wliicli  was  issued  by  in  on  the 
2Gth  day  of  August,  1870.     If  the  circuit  judge  had  power  to 


EX  PARTE  JILZ. 


219 


issue  tlio  writ — -wliicli  is  coiicedod — such  judge  acquired  jurisdic- 
tion over  tlie  sul)je(;t  inatter,  when  the  office  of  the  writ  had  been 
partially  performed,  in  bringing  before  him  the  prisoner  with 
the  cause  of  his  detention  and  imprisonment. 

In  the  case  of  Mavtm  v.  The  Slate  (12  Mo.,  474),  where  one 
Jackson  was  imprisoned  by  virtue  of  an  indictment  found  in  the 
criminal  court  of  St.  Louis  county,  and  not  liaving  been  ]»rouglit 
to  trial  at  the  end  of  the  second  term  after  the  indictment  was 
found,  he  was  discharged  on  habeas  corpxiH  by  a  judge  of  the  cir- 
cuit court  of  St.  Louis  county  from  his  imprisonment.  Martin, 
tlie  jailor,  having  him  in  custody,  was  ordered  by  the  criminal 
court  to  retain  Jackson  in  custody  to  answer  the  indictment,  but 
disregarded  tlie  order  of  the  criminal  court  and  discharged  Jack- 
son in  obedience  to  the  order  of  the  circuit  judge.  Martin  was 
lined  for  contempt  in  disobeying  the  order  of  the  criminal  court, 
and  appealed  to  this  court  from  the  judgment  imposing  the  fine. 
In  the  disposition  of  the  case  it  became  necessary  to  consider  the 
action  of  the  circuit  judge  in  discharging  Martin,  and  Judge 
Ryland,  speaking  for  the  court,  observed  :  "  The  St.  Louis  cir- 
cuit court,  and  the  judge  thereof  in  vacation,  had  the  power  to 
grant  and  issue  the  writ.  This  gives  to  such  court  or  judge 
jurisdiction  over  the  matter ;  and  though  the  statute  expressly 
declares  that  no  person  imprisoned  on  an  indictment  found  in 
any  court  of  com})etent  jurisdiction,  or  by  virtue  of  any  process 
or  connnitment  to  enforce  such  indictment,  can  be  discharged 
under  the  provisions  of  this  act,  but  may  be  let  to  bail  if  the 
(iflense  is  bailable,  and  if  the  offense  be  not  bailable,  he  shall  be 
remanded  forthwith ;  yet  this  section  does  not  take  away  the 
jurisdiction,  but  orders  and  directs  what  shall  be  done.  A  circuit 
judge,  thwefore,  discharging  against  this  provision  of  the  statute, 
may  be  considered  as  acting  indiscreetly,  even  erroneously.  Yet 
Laving  jurisdiction  over  the  subject,  his  order  discharging  must 
be  considered  as  justification  to  the  jailor  in  turning  out  the 
prisoner.  *  *  *  '■'•'  The  circuit  judge  liaving  authority  to 
issue  the  writ  of  habeas  corj>us  (and  this  point  the  attorney  for 
the  state  in  his  ])ric'f  admits,  but  contends  that  all  the  subse- 
quent acts  of  the  judge  are  not  oidy  against  but  beyond  his  juris- 
diction, and  are  utterly  void),  his  act  afterwards  in  discharging 
Jackson,  the  prisoner,  although  it  may  have  been  erroneous  and 
contrary  to  law,  yet  it  could  not  be  said  to  be  an  act  coram  non 
Judice." 


\ 

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220 


AMERICAN  CIIIMIXAL  UEPOUTS. 


So,  also,  ill  the  case  of  £x  parte  Page  (49  Mo.,  291),  it  was 
held  by  this  court  "  that  Page,  who  had  been  convicted  of  grand 
larceny  and  sentenced  to  the  penitentiary  for  ten  years,  was 
entitled  to  his  discharge  on  proceeding  by  habeas  corpus^  on  the 
ground  that  the  judgment  of  the  court  sentencing  him  to  ten 
years  was  void,  because  the  highest  punishment  under  the  law 
was  seven  years  for  such  offense." 

-Jiulge  Lindley,  of  tlie  circuit  court,  having  thus  acquired 
jurisdiction  of  the  person  and  subject  matter,  was  authorized  and 
iv(|uired  to  determine  the  question  as  to  the  legality  of  the 
imprisonment,  and  whether  he  decided  erroneously  or  not,  is 
immaterial,  the  discharge  of  the  prisoner  being  in  favor  of  per- 
sonal liberty,  is  final  and  conclusive.  In  proceedings  by  liahetix 
corpus,  this  court  only  exercises  original  jurisdiction,  and  in 
issuing  the  writ  and  determining  the  questions  arising  under  it, 
possesses  no  more  power  than  is  possessed  by  a  circuit  or  county 
court,  or  any  judge  or  ofHcer  authorized  by  law  to  issue  the  writ 
and  authorized  to  remand,  admit  to  bail,  or  discharge  the  prisoner 
according  to  the  circumstances  of  the  case. 

In  the  case  of  Ilowe  v.  The  State  (9  Mo.,  690),  it  was  held 
that  an  appeal  from  a  juilginent  of  the  circuit  court,  refusing  to 
discharge  a  prisoner  on  habeas  ca/piis,  would  not  lie  to  this  court. 

In  the  case  of  Ax  parte  Long  (11  Mo.,  6G2),  it  was  also  held 
that,  "in  deciding  on  the  propriety  of  discliarging  a  prisoner  on 
habeas  corpus,  this  court  exercises  no  appellate  jurisdiction." 

It  would  seem,  therefore,  that  if  a  judgment  of  a  circuit  court 
refusing  to  discharge  a  prisoner,  was  conclusive,  or  not  subject 
to  be  reviewed  on  appeal,  a  judgment  of  a  court  or  judge,  dis- 
charging a  prisoner,  ought  in  like  manner  to  be  conclusive,  espe- 
cially when  the  statute  expressly  provides  that  "  no  person  wlio 
has  been  discharged  by  the  order  of  any  court  or  magistrate  upon 
a  writ  of  habeas  corjfUfi,  issued  pursuant  to  this  chapter,  shall  be 
again  imprisoned,  restrained,  and  kept  in  custody  for  the  same 
cause,"  etc.  (Gen.  St.,  G29,  sec.  55.) 

The  case  of  Yates  (4  Johns.,  318),  is  very  analogous  in  some  of 
its  features  to  the  case  at  bar,  and  the  questions  involved  were 
most  ably  and  thoroughly  discussed.  Yates  was  committed  to 
jail  by  a  court  of  chancery  for  contempt  of  court.  lie  a]>plied 
to  Justice  Spencer  for  a  writ  of  habeas  corpus,  and  was  by  him 
discharged.  After  he  was  discharged  the  court  of  chancery 
ordered  his  arrest  and  imprisonment  on  the  same  charge,     lie 


EX  PAIITE  JILZ. 


221 


applicJ  to  Justice  Spencer  again  for  a  writ  of  haheas  coi'pus,  iind 
was  agaiji  by  liim  diseharged.  After  tliis  discliar^o  lie  was  again 
iiiTt'sted  and  imprisoned  on  the  order  of  tlie  cliancery  court  on 
rlif  ^•a^le  charge.  An  application  was  subsequently  made  to  the 
>^iipreuie  Court  by  Yates  for  a  writ  of  haheas  cofj)HS,  which  was 
<,qantoil,  and  after  a  full  hearing  the  prisoner  Mas  remanded  to 
tiititod}'.  lie  then  sued  out  a  writ  of  error,  and  the  case  was 
heard  by  the  court  of  errors,  and  is  reported  in  G  Johns.,  337. 
Tlie  decision  of  the  Supreme  Court,  in  4  Johns.,  was  reversed  by 
the  court  of  errors,  and  the  prisoner  discharged.  Clinton,  who 
(lolivered  the  opinion,  concurred  in  by  a  majority  of  the  court, 
cunsidered  the  following  points  with  others: 

1st.  AVhether  a  judge  in  vacation  had  jurisdiction  in  the  case? 

2d.  Wliether  a  ])erson  discharged  on  a  haheas  corpus  can  be 
le-iniprisoned  for  the  same  otlense ? 

In  ptussing  upon  tlie  two  ])oints,  he  observes:  "A  judge  is 
certainly  constituted  a  tribunal  to  pronounce  upon  the  legality  of 
a  commitment.  lie  is  not  to  intermeddle  when  the  prisoner  is 
i'.  convict  or  in  execution  by  legal  process — when  he  is  detained 
by  legal  processes — out  of  criminal  courts  for  some  matter  or 
iitTciise  not  bailable.  If  a  prisoner  is  brought  before  a  judge  in 
hahras  corpus,  who  is  to  determine  on  the  legality  of  a  commit- 
ment, is  he  to  take  it  for  granted  that  every  commitment  of 
every  court  and  magistrate  for  offenses  not  bailable  is  legal,  and 
to  remand  the  prisoner  accordingly  i  Will  not  this  render  the 
hiihtHin  co/-j)i/s  act  of  little  value,  and  circumscribe  its  operation 
ill  a  most  pernicious  manner  ?  The  judge  has  jurisdiction,  and, 
it'  he  has  jurisdiction,  his  judgment  may  be  erroneous,  but  it  can- 
ii(»t  be  void.  If  he  decides  that  the  process  is  illegal,  he  may  err, 
and  so  may  all  courts,  but  erroneous  judgments  are  not  void  but 
voidable.  If,  then,  the  judge  had  jurisdiction  in  the  cause, 
whether  he  decided  erroneously  or  not,  is  immaterial;  his  dis- 
charge being  in  favor  of  personal  liberty  is  final  and  conclusive, 
lie  is,  in  that  respect,  a  court  of  (Jcrnier  resorf''  He  also 
observes,  in  speaking  of  the  provision  of  the  statute  of  New 
York,  similar  to  our  own,  "that  no  person  who  shall  be  set  at 
huge  upon  any  haheas  corpun,  shall  again  be  imprisoned  for  the 
same  oilense,  unless  by  the  legal  order  or  process  of  the  court 
wherein  he  is  bound  by  recognizance  to  apjiear,  or  other  court 
having  jurisdiction  of  the  cause.'' 

This  provision  appears  to  set  this  branch  of  the  inquiry  at 


lis 


•i; 


iA 


^^U 


i  l\: 


ri  ■: 


l--^ 


>t 


0         (■   ,1 


222 


AMERICAN  CRIMINAL  REPORTS. 


rest.  It  is  the  same  as  in  the  English  statute,  and  evitlently 
refers,  when  speaking  of  the  court  where  the  prisoner  is  bound 
to  appear,  or  a  court  having  jurisdiction  of  the  cause,  to  the  case 
of  persons  bound  to  appear  and  answer  for  crimes  in  criminal 
courts.  If  the  right  of  the  imprisonment  is  sustained  in  other 
cases,  the  benefits  of  the  writ  of  habeas  corpus  may  be  greatly 
evaded  if  not  completely  nullified.  I  consider  it,  therefore,  of 
great  importance  to  personal  liberty  to  resist  this  extraordinary 
doctrine.  Abuses  may  indeed  occur  in  the  exercise  of  the  powers 
of  a  judge  under  the  haheas  corpus  act,  but  if  he  errs  in  favdi- 
of  personal  liberty,  he  errs  on  the  safe  side,  and  his  decisitiu 
ought  not  to  be  called  in  question.  That  any  re-eommitinent  in 
this  case  is  illegal,  I  think  cannot  be  doubted.  The  ])risoner  was 
discharged  from  custody,  and  the  judgment  of  the  Supreme 
Court  remanding  him  to  imprisonment  was  reversed  by  the  court 
of  eri'ors. 

The  conclusion  arrived  at  in  the  case  of  Yates,  was  reached 
after  a  most  thorough  and  searching  investigation  by  some  of  the 
ablest  and  most  learned  judges  of  that  day,  and  commends  itself 
to  our  favorable  consideration  as  being  in  consonaiife  with  the 
justice  of  the  case  and  sound  logic.  In  the  light,  therefore,  of 
the  cases  above  cited,  as  well  as  the  provisions  of  our  statute 
regulating  proceedings  of  this  chara(!ter,  and  expressly  prohibiting 
the  re-arrest  and  re-commitment  of  a  prisoner  after  being  dis- 
charged by  a  court  or  officer  having  jurisdiction  of  the  person, 
and  authority  to  act  in  regard  to  the  subject  matter,  the  re-arrest 
and  re-commitment  of  Jilz  by  the  St.  Louis  court  of  criminal 
correction  was  unauthorized,  and  his  im))risonnient  thereunder 
illegal.  It  is  no  argument  against  this  conclusion  to  say  that  a 
judge  or  officer  authorized  to  issue  this  writ  of  right  may  com- 
mit a  mistake  and  release  from  confinement  a  citizen  who  ought 
not  to  be  released.  Under  any  system  of  jurisprudence,  no 
matter  how  perfect  and  complete  it  may  be,  mistakes  will  some- 
times be  made,  and  errors  committed.  Questions  of  law  or  fact, 
whether  the  determination  of  them  bo  confided  to  the  court  or 
jury,  owing  to  the  imperfections  incident  to  all  humau  reasoning, 
are  often  improperly  and  erroneously  determined,  yet  when  they 
are  determined  by  those  who  are  by  law  intrusted  with  their 
determination,  that  is  an  end  of  the  matter.  If,  even,  as  in  this 
case,  a  person  convicted  of  a  misdemeanor,  brutal  in  its  charac- 
ter, and  which  shocks  the  moral  sense  of  the  whole  community, 


EX  PARTE  JILZ. 


223 


should  be  entitled  to  his  discliarge  by  i-easoii  of  any  error  coiii- 
niitfed.  it  is  better  that  it  should  be  so  than  that  a  principle  should 
bo  recognized  or  a  rule  laid  down  which  would  practically  render 
the- writ  of  hahnis  <;i>rj)us  a  nullity,  and  bring  into  constant  dan- 
ger and  peril  the  liberty  of  the  citizeN.  We  deem  it  unneces- 
Gurv,  for  the  purpose  of  this  case,  to  enter  into  a  consideration  of 
the  question  whether  the  act  requiring  the  St.  Louis  court  of 
c'liuiinal  correction  to  sentence  persons,  who  are  convicted  of 
misdemeanors  in  St.  Louis  county,  to  the  work-house  of  the  city 
of  St.  Louis  for  the  period  of  six  months,  is  or  is  Jiot  obnoxious 
to  the  constitution,  on  the  ground  of  its  being  a  ]iartial  or  local 
and  not  a  general  law.  L'^])on  this  point  we  express  no  opinion, 
iKir  is  it  necessary  to  do  so. 

It  is  argued  that,  inasmuch  as  Jilz,  on  the  19th  day  of  August, 
1S7<!,  took  his  appeal  to  the  St.  Louis  court  of  ap])eals  from  the 
judgment  of  the  St.  Louis  court  of  criminal  correction,  the  con- 
fititution,  in  providing  that  no  appeal  in  such  cases  from  the 
jiuigment  which  the  St.  Louis  court  of  appeals  might  render 
should  be  allowed,  deprives  this  court  of  its  original  jurisdiction 
to  issue  writs  of  habeas  corpuft,  and  to  hear  and  determine  the 
same. 

If,  in  issuing  writs  of  huhean  corpuK,  and  in  determining  the 
questions  arising  thereunder,  this  court  could  exercise  appellate 
jurisdiction,  there  might  be  some  ground  for  the  proposition  con- 
tended for.  It  has,  however,  been  expressly  decided  in  the  cases 
herein  cited,  that  in  a  proceeding  of  this  character  this  court 
v'luniot  exercise  any  appellate  jurisdiction  whatever.  It 
therefore  necessarily  follows  that  the  prohibition  of  an  appeal 
from  any  decision  which  might  be  rendered  by  the  St.  Louis 
court  of  appeals  does  not  prohibit  this  court  from  the  exercise 
of  a  jurisdiction  bestowed  by  the  constitution  in  the  exercise  of 
which  (as  in  habeas  corpus)  it  does  not  act  as  an  appellate  court. 
For  the  reasons  expressed  herein,  we  think  the  prisoner  is  enti- 
tled to  a  discharge  from  the  imprisonment  of  which  he  com- 
plains, and  with  the  concurrence  of  the  other  judges  will  be  so 
ordered. 


is 


'.  M 


^5; 


If 


Per  Henry,  J.,  concumng.  I  fully  and  heartily  concu:'  in 
the  foregoing  able  opinion,  and  hold  that  the  judgment  of  Judge 
Lindley,  discharging  Jilz  from  the  custody  of  the  jailor,  waa 
iinal  and  conclusive,  and  that  neither  the  court  of  criminal  cor- 


H 


**'•> 


I  i 


H 


224 


AMEIilCAN  CRIMINAL  llEPORTS. 


rection,noranyotlier  court  ill  the  state  could  re-commit  him  on 
tlio  oriui'i'il  !«.'iitence. 

Tlio  ))o.siti()a  of  the  counsel  for  the  state,  and  the  f:;romid 
necessarily  taken  by  any  one  holding  that  the  action  of  the 
court  of  criminal  correction  was  proper,  is  that,  although  tlio 
statute  authorized  Judge  Lindley  to  issue  the  writ,  and  when 
Jilz  was  brought  before  him,  he  acquired  jurisdiction  of  liis 
peison  and  of  the  cause,  yet  he  had  no  jurisdiction  to  discharge 
him,  unless  he  should  decide  properly  the  legal  questions 
involved.  In  other  words,  if  the  sentence  pronounced  by  the 
court  of  criminal  correction  was  right,  Judge  Lindley  had  jnris- 
diction  to  commit,  but  none  to  discharge  Jilz,  and  Judge  Cady 
had  the  right,  and  it  became  his  duty  to  disregard  the  order  of 
discharge  and  re-commit  him. 

In  the  matter  of  Da  Costa  (Park.  Crim.  Cas.,  129)  it  was 
held  by  the  Sui)reme  Court  of  New  York,  that  "the  principle 
of  res  adjudicata  is  applicable  to  proceedings  upon  habeas 
corjmsy  That  was  a  case  in  which  the  petitioners  had  bcuii 
remanded  to  the  custody  of  the  person  who  held  them,  but  the 
principle  of  that  is  none  the  less  applicable  to  this  case.  Our 
statute  gives  the  prisoner  this  writ  as  often  as  he  may  find  a 
court  or  officer  superior  to  the  one  to  whom  he  last  made  his 
application,  authorized  to  issue  it.  In  his  petition  he  is  reqniri'(l 
to  state,  "  that  no  ap])lication  for  the  relief  sought  has  been  made 
to  or  refused  by  any  court,  officer  or  officers  superior  to  the  one 
to  whom  the  petition  is  presented." 

In  the  case  of  Da  Costa,  nupra,  the  observation  of  Senator 
Paige  is  quoted  and  ajtproved,  that  "  if  a  final  adjudication  iijxni 
a  habeas  corptis  is  not  to  be  deemed  res  adjudicata  the  conbc- 
(jueiice  will  be  lamentable.  This  favored  writ  will  become  an 
engine  of  op])ression  instead  of  a  writ  of  lilierty." 

In  the  same  case  {Met'cuu  i\  People^  ex  rd.  Bu/'iwi/,  25  Wend., 
(J-i)  the  chancellor  delivering  the  opinion  also  held  that  "the 
jirinciple  of  res  adjudicata  was  ai)plicable  to  a  proceeding  upon 
habeas  corpus.'''' 

Neither  the  court  of  ajtpeals  nor  the  Supreme  Court  exercises 
appellate  jurisdiction  when  it  issues  this  writ,  and  its  judgment, 
in  this  proceeding,  is  of  no  more  force  or  validity  thuu  that  of  a 
justice  of  the  county  court,  or  a  circuit  judge. 

In  ex  parte  Toney  (11  Mo.  (Kia),  .ludge  Napton  observed  that, 
"in  deciding  on  the  propriety  of    discharging  u  prisoner  oa 


EX  PARTE  JILZ. 


225 


hahafs  corpus  this  court  exercises  no  appellate  jurisdiction.  In 
the  exercise  of  this  jjower  it  is  confined  within  the  same  limits 
which  would  restrain  a  judge  of  the  circuit  or  county  court  in  its 
exereif^e.  It  can  give  no  other  or  greater  relief  than  is  afforded 
by  these  officers.  If  the  idea  of  all  appellate  jurisdiction  is  dis- 
carded, it  will  be  obvious  that  neither  this  court,  nor  any  other 
court  or  officer,  can  investigate  the  legality  of  a  judgment  of  a 
court  of  competent  jurisdiction  by  a  writ  of  Jidbeas  corpus.  If 
the  court  has  jurisdiction  of  the  subject  matter  and  of  the  per- 
son, although  its  proceedings  may  be  irregular  or  erroneous,  yet 
they  cannot  be  set  aside  in  this  proceeding.  The  party  must 
resort  to  his  writ  of  error,  or  other  direct  remedy,  to  reverse  or 
set  aside  the  judgment,  for  in  all  collateral  proceedings  it  will  be 
held  to  be  conclusive." 

The  court  held  in  that  case  that  Toney  was  not  entitled  to  his 
(liscliaruc  and  remanded  him  to  the  custodv  of  the  warden  of 
the  penitentiary  ;  but,  suppose  it  had  determined  otherwise,  was 
there  any  authority  in  the  court,  in  which  Toney  was  convicted 
and  sentenced,  to  re-commit  him,  in  detiunce  of  the  nuuidate  of 
this  court,  whether  it  erred  or  not  ?  Could  the  inferior  court 
have  reviewed  and  reversed  the  judgment  of  the  court?  When 
the  court  says  :  ''  Alth(»ugh  its  proceedings  (i)roceedings  of  the 
court  in  which  the  conviction  was  had)  nuiy  be  irregular  ov  errone- 
ous, yet  tlioy  cannot  beset  aside  in  this  proceeding,  it  was  not 
passing  upon  the  elTect  of  a  judgment  upon  a  hahms  corpua  dis- 
charging the  prisoner,  but  announcing  a  rule  by  which  courts,  or 
otHcers  issuing  the  writ,  should  be  guided  in  determining  what 
judgment  to  render. 

If  the  doctrine  of  the  Toney  case  be  correct,  and  we  fully 
indorse  it,  the  court  of  criminal  correction,  if  Jilz  had  sued  out 
his  writ  in  this  court  instead  of  the  circuit  court,  and  been  dis- 
charged, could  liave  re-committed  him,  ai'.d  repeated  the  commit- 
ment as  often  as  any  court  should,  on  .idbeas  corpus^  order  his 
discharge,  unless  such  order  regularly  issued,  were  a  finality.  If 
we  now  discharge  Jilz,  what  is  to  hinder  the  court  of  criminal 
correction  from  re-committing  him,  if  the  doctrine  contended 
for  he  the  law?  And  if  this  be  the  law,  of  wliat  value  is  the 
writ  of  habeas  corpus  f  The  judge  of  the  court,  acting  in  a 
judicial  capacity,  would  not  be  liable  to  the  penalty  j)reseribed  by 
the  statute,  and  if  ho  were,  what  is  the  peiudty,  a  hundred  times 
recovered,  in  ctunparison  of  the  personal  lil)erty  of  a  citiicen  ? 
V<ii..  II.— l.-i 


iii^i 


i  .■'* 


'W, 


i.'i'. 


M 


22G 


AMERICAN  CRIMINAL  REPORTS. 


But,  it  may  be  said,  a  county  court  justice  may  issue  the  writ 
and  discharge  cue  convicted  of  a  felony,  and  sentenced  to  tlie 
penitentiary  by  a  circuit  court.  If  this  be  so,  the  mistake  was 
in  autliorizing  such  inferior  courts  to  issue  this  writ,  but  far 
better  were  it  that  nine  hundred  and  ninety-nine  of  every  thou- 
sand guilty  men  should  escape  under  this  process,  than  that  a  writ, 
which  in  the  past  lias  accomplished  so  much  for  personal  liberty, 
should  be  rendered  inefficacious  by  judicial  construction  or  legis- 
lative enactment. 

It  is  the  most  celebrated  writ  known  to  our  law,  and  has 
received  such  encomiuiris  as  have  been  pronounced  upon  no  other 
judicial  process  belonging  to  ours  or  any  other  system  of  juris- 
prudence. Its  origin  is  so  far  back  in  antiquity  that  its  dutv 
cannot  now  be  ascertained.  It  is  older  than  Magna  Charta,  and 
for  centuries  has  been  held  by  Englishmen  as  the  bulwark  of 
their  liberty,  and  is  so  highly  esteemed  by  the  |)eople  of  the 
United  States,  that  it  has  been  embalmed  in  the  federal  consti- 
tution and  in  tlie  constitution  of  every  state  in  the  Union  ;  iind 
yet  if  tlie  po.-ition  of  the  counsel  for  tlie  state  be  correct,  it  is  of 
less  value  than  a  writ  of  replevin,  or  2t,  fieri  facias,  fur  these  do 
what  they  arc  designed  to  aceom[)lisli,  while  an  inferior  court 
can  set  at  niuiu'lit  tlie  judgment  of  the  highest  judicial  tribunal 
of  the  land  discliarging  one  restrained  of  his  liberty,  and  the 
victim  of  judicial  oppression  has  no  remedy  but  to  resort  again 
to  his  hnhcax  co/'j>ihs,  again  to  be  eonnnitted  if  such  inferior 
court  decree,  or  feign  to  believe,  the  judgment  discharging  him 
erroneous.  AVith  what  propriety  could  it  be  denominated  "  tlic 
great  writ  of  liberty,"  if  this  be  the  law  ^  When,  then,  would 
a  citizen,  illegally  restrained  of  his  liberty,  get  his  final  discharge 
on  a  habeas  corpus  f 

Tliis  is  no  time  to  impair  the  eflicacy  of  this  writ.  Now,  more 
than  ever  before,  should  we  be  careful  to  jireserve  "  this 
dearest  birthright  of  ]iritons,"  as,  more  than  a  century  ago,  it  was 
characterized  by  the  English  colonists  in  America.  No  prison 
walls  should  be  strong  enough,  against  its  mandate,  to  hold  one 
for  whom  it  issues,  nor  any  jmlge  or  court  too  great  to  bow  in 
submission  to  the  judgment  rendered  in  the  proceeding  l)y  a 
tribunal  authorized  to  issue  the  writ  of  habeas  corpus. 

I  think  that  the  prisoner  is  entitled  to  his  discharge. 

Note.— How  I'lir  u  dt'cisiou  cm  a  licuiiiig  ou  a  writ  of  habcm  corpus  Is  to  bo 
regarded  im  vea  mljudiciaa  is  a  sulijrct  tlml  has  been  iiiueh  iltscUHsed,  uud  on 


EX  PARTE  JILZ. 


22f 


whicli  the  authorities  are  bj'  no  means  uniform.  It  is  laid  down  by  llurd 
that  "it  lias  never  been  decided  in  England  that  a  writ  of  error  will  lie  to  a 
final  judgment  made  on  habeas  corpus.  But  it  has  repeatedly  been  said  that  it 
•would  not."  (Ilurd  on.  Ilubeax  Corpus,  marg.  p.  562.)  The  ground  on  which  it 
■was  denied  that  a  writ  of  error  would  lie  is  that  the  adjudication  was  not  liuul. 
See,  ou  this  point,  Vnhs  v.  People,  6  Johns,  429,  where  it  was  held  that  a  writ 
of  error  would  lie  to  a  judgment  against  the  prisoner  remanding  him  to 
prison.  In  J'Jx  parte  Pennington,  13  Meeson  and  Welsby,  p.  678,  the  court 
of  exchequer  re-examined  the  question  of  the  petitioner's  right  to  a  discharge 
on  hdb&is  corpus,  although  the  case  had  already  been  before  the  court  of 
Queen's  Heneh  and  before  the  lord  chief  baron  at  chambers,  both  of  whom 
had  refused  a  discharge,  the  court  saying:  "The  defendant,  however,  has 
the  right  to  the  opinion  of  every  court  as  to  the  propriety  of  his  imprison- 
ment, etc."  In  California  the  same  doctrine  is  held,  the  court  saying  that, 
"Tlie  statute  never  contciuplated  that  a  judgment  on  one  writ  should  be  a 
l)iir  to  any  further  proceeding,  but  looks  to  a  dillerent  result,  and  any  prisoner 
may  ])ursue  his  remedy  of  habeas  corpus  until  he  has  exhausted  the  whole 
judicial  (lower  of  i\w  statute;"  In  re  Perkim,  2  Cal.,  424;  see  also  In  re 
liiiKj.  28  Cal.,  247.  That  a  v  rit  of  error  will  not  lie  to  an  adjudication  on  a 
writ  of  habeas  corpus  lieeause  the  judgment  is  not,  linal,  see  Uaminond  v. 
People,  Wi  111.,  410;  JiussiU  r.  Com.,  Penrose  and  Watts,  83;  Com.  v.  Jones,  3 
Serix.  and  Rawle,  158;  Bell.  v.  State,  4  Gill.,  301;  Jones  v.  Tlmbcrhikc,  6  Rand., 
680,  note;  Wade  v.  Judqe.  i)  Ala.,  11)0;  Steal  r.  Shirlet/,  9  Smedes  and  ^Marsh. ; 
888;  Jlow  V.  Stale,  9  .Mo.,  (190;  Weddington  v.  Sloan,  15  B.  Mon.,  147;  Re  parte 
MUchtU,  1  La.  Ann.,  4i;5.  lu  Marvin  o.  Kirby,  12  B.  Mon.,  542,  where  a 
islave  filed  a  bill  in  chaneery  ajrainsl  her  mistress  to  obtain  a  decree  that  she 
■was  free,  relying  on  a  decision  ou  a  writ  of  habeas  corpus  which  .she  had  sued 
out  when  traveling  in  Pennsylvania  with  her  mistress,  it  was  held  that  the 
decision  on  the  writ  in  Peiui.sylvauia  was  not  res  adiudicata  and  could  not 
avail  her. 

In  MiCnwlofjue's  Case,  107  Mass.,  154,  wliere  it  appeared  that  a  minor  who 
had  enlisted  in  the  army  had  been  once  discharged  on  habeas  corpus,  and  had 
aftcrwanls  been  retaken  by  the  military  oflleer,  it  was  held  that  a  judgment 
in  the  minor's  favor  on  the  first  writ  was  conclusive  as  to  the  illegality  of  hia 
enlislnienl,  and  that  he  was  entitled  to  his  discharge  on  a  second  writ,  on  the 
proiniil  that  the  nuitlcrs  involved  v/ere  res  adijudieatm.  And  in  Ex  parte 
McGehan,  22  Ohio  St.,  442,  a  similar  doctrine  is  announced,  although  in  that 
case  it  is  but  dieliim,  the  facts  not  calling  for  tlie  application  of  the  rule.  In 
New  York  it  njipears  that  a  judgment  on  a  writ  of  habeas  corpus  is  considered 
a  liual  judgment,  and  that  a  writ  of  error  of  certiorari  will  lie  to  review 
it.  See  People  v,  Cawaagh,  3  Park.  Cr.,  050;  People  V,  Burtnett,  5  Park.  Or., 
113. 


I  !  5 


'A 


m:- 


"  1  ^ 


r 


■i 


I 


228  AMERICAN  CRIMINAL  REPORTS. 

In  ke  Snyder. 

(17  Kan.,  542.) 

Habeas  Corpus:    False  pretenses — Evidence — Delusive  promise. 

Under  section  677  of  the  code,  Gen.  Stat.  1868,  p.  763,  the  judge  or  court 
issuing  a  writ  of  habeas  corpm  on  a  petition  complaining  tljat  the  iicisou 
in  whose  behalf  the  writ  is  applied  for  is  restrained  of  his  liberty  without 
probable  cause,  may,  even  in  case  there  is  no  defect  in  the  charge  or  pro 
cess,  summon  the  proscculing  witness,  investigate  the  criminal  charge, 
and  discharge,  let  to  bail,  or  recommit  the  prisoner,  as  may  be  just  and 
legal. 

On  the  hearing  and  determination  of  a  cause  arising  upon  a  writ  of  ludjtitx 
corpiin,  before  a  judge  or  court  investigating  tlie  criminal  charge  against  a 
person  committed  by  an  examining  magistrate  for  the  ofFense  of  havin'^ 
obtained  money  or  property  by  false  jiretcnses,  the  prosecutor,  wlicn 
examined  as  a  witness,  may  testily  that  he  believed  tlie  pretenses,  and, 
confiding  in  their  truth,  was  induced  thereby  to  part  with  ids  money  uv 
property. 

It  is  not  necessary,  to  constitute  the  offense  cf  obtaining  goods  by  falsi'  pre 
tenses,  that  the  owner  has  been  induced  to  part  with  his  property  solely 
and  entirely  by  pretenies  which  are  false;  nor  need  the  i)ret(nses  be  the 
•  paramount  cause  of  the  delivery  to  the  prii-uner.  It  is  ^ullicient,  if  tiny 
are  a  ]>arl  of  the  moving  cause,  and,  without  them,  the  dofrautled  purly 
wcmid  not  have  iiiirled  with  the  property. 

A  pretense  which  is  false  when  made,  but  true  by  the  act  of  the  person 
making  the  same  when  the  prosecutor  relies  thereon  and  parts  with  his 
property,  is  not  a  false  i)retense  williin  the  statute. 

To  hold  a  person  for  trial  who  is  charged  with  obtaining  money  or  i)roiieriy 
by  false  pretenses,  it  must  appear  that  the  pretenses  relied  upon  relate  to 
a  past  event  or  to  some  present  existing  fact,  and  not  to  something  to 
happen  in  the  future.     A  mero  promise  is  not  suQicient. 

Oriii;iiial  ])rooecdin^  in  haheas  cofjms. 

Petition  filed  in  tliis  court  on  the  2d  day  of  January,  1S77,  on 
behalf  of  A.  J.  8nyder,  for  ti  M-rit  of  hahm^  corpus.  The  peti- 
tioner sets  forth  the  following  facts: 

"That  A.  J.  Snyder  was  illegally  restrained  of  his  liberty  in 
the  county  jail  at  Mound  City,  the  county  seat  of  Limi  county,  by 
D.  R.  Lainoreau,  as  sheriff  of  said  county;  that  said  D.  K. 
Lanioretiu  pretends  to  restrain  said  A.  J.  Snyder  of  his  liberty  by 
virtue  .)f  some  pretended  proof,  the  precise  nature  of  wliicli  is 
unknown  to  your  petitioner,  the  justice  before  wIkwu  he  was 
o.vaniined  not  having  reduced  such  testimony  to  writing.  Your 
petitioner  further  represents  unto  your  honorable  court  that  sudi 
illegal  restraint  consists  in  the  following:  that  on  the  Ist  day  of 


IN  HE  SNYDER. 


229 


December,  187C,  said  A.  J.  Snyder  was  arrested  upon  the  charge 
of  obtaining  nionej'  under  false  pretense?,  and  taken  before  one 
A.  D.  Hyatt,  a  justice  of  the  peace  in  and  for  Linn  county,  for 
preliminary  examination  ;  that  upon  such  examination  there  was 
no  evidence  offered  which  showed  or  tended  to  ehow  in  any  man- 
ner that  an  offense  had  been  committed  against  or  under  the  laws 
of  the  state  of  Kansas,  nor  was  there  any  evidence  offered  which 
eliowed  or  in  any  manner  tended  to  show  that  there  was  any 
probable  cause  for  believing  that  said  A.  J.  Snyder  had  been 
guilty  of  any  offense  whatever  under  the  laws  of  the  state  of 
Kansas.  Yet,  notwithstanding  the  premises,  the  said  justice  of 
the  peace  refused  to  discharge  the  said  A.  J.  Snyder  or  to  admit 
him  to  bail,  as  under  the  laws  of  the  state  of  Kansas  he  was 
required  to  do." 

The  petition  further  a.'leged  tliat  the  order  or  warrant  of  com- 
mitiueiit  under  which  Snyder  was  held  in  custody  was  illegal 
and  insufficient  in  law.  It  also  states  that  the  reason  the  applica- 
tion was  not  made  to  the  probate  judge  of  Linn  county,  was, 
"that  such  probate  judge  is  disqualified  from  hearing  the  same 
by  reason  of  being  an  attornoj-of-record  in  a  civil  "uit  involving 
the  same  transaction."  And  the  petition  further  alleges  "  that 
an  a^)plication  was  made  to  the  Hon.  W.  C.  Stewart,  judge  of 
tlie  0th  judicial  district,  in  which  Linn  county  is,  for  a  writ  of 
hiihcds  corpus,  and  that  said  application  was  refused."  The  usual 
prayer  for  the  issuance  of  the  writ  was  also  annexed  thereto. 
Upoti  such  petition  the  writ  of  haheas  corpus  was  issued  b}*  the 
court,  and  was  duly  served  upon  the  said  Lamoreau,  sheriff,  to 
which  a  return  was  made  by  said  sheriff,  in  effect  that  "  he 
iiiul  the  body  of  said  Snyder  before  the  court."  And  for  tln' 
authority  and  cause  of  the  restraint  of  the  said  Snyder  in  his 
custoily  he  stated  that — 

"On  December  let,  1876,  John  TTood  made,  in  writing  and 
ujioii  oath,  a  complaint  before  A.  D.  IJyatt,  a  justice  of  the  peace 
ol  Linn  county,  against  the  said  A.  J.  Snyder,  charging  him  with 
having,  on  November  25th,  187G,  procured  ^L.'idO  in  money  and 
a  check  drawn  by  Snyder  &  Co.,  on  Hood  tfe  Kincaids,  in  favor 
of  Snyder  «fe  Co.,  for  the  sum  of  $1,500,  upon  which  check  the 
Kild  .lohn  Hood  wrote  across  the  face,  "The  First  National  Manic 
of  Kansas  city,  ^lissouri,  will  please  ])ay,— llooti  Ar  Kincaids,'" 
from  tlie  firm  of  Ilood  vt  Kincaids  by  false  ])ret(!nsi's  and  witli 
intend  to  defraud  TTood  A:  Kincaids;  that  on  said  December  1st 


■TT^ 


230 


AMERICAN  CRIMINAL  REPORTS. 


i'    i 


3>' 


,  'J 

1  <;i 


fir 


Baid  justice  of  the  peace  issued  a  warrant,  reciting  fully  the 
alleged  offense;  that  Snyder  was  arrested;  that  upon  the  pre- 
liminary examination  numerous  witnesses  (giving  their  names), 
testified;  that  the  evidence  taken  at  the  examination  was  not 
reduced  to  writing ;  tliat  upon  the  conclusion  of  the  examination 
the  justice  decided  an  offense  had  been  committed,  and  that  there 
was  probable  cause  to  believe  said  Snyder  guilty  as  charged  in 
the  complaint  and  warrant,  and  ordered  that  he  give  bail  in  the 
sum  of  $5,000  for  his  appearance  at  the  district  court  of  said 
Linn  county,  at  the  next  term  thereof,  to  answer  said  charge,  and 
in  default  of  such  bail  to  be  committed  to  the  jail  of  the  county 
of  Linn  ;  that  no  bail  whatever  was  offered ;  that  said  justice  of 
the  peace  then  made  out  a  written  order  of  commitment,  and 
gave  the  same  to  the  respondent  to  execute ;  that  said  respondent 
was  and  is  the  sheriff  of  said  Linn  councy,  and  held  said  Snyder 
in  his  custody  as  such  sheriff  by  virtue  of  said  order  of  commit- 
ment." 

Copies  of  the  complaint,  warrant,  and  decision  of  the  justice, 
arc  attached  to  the  return.  The  original  order  of  commitment 
was  also  produced  by  the  sheriff  on  the  hearing.  A  reply  was 
filed  to  the  return  of  the  officer,  stating  that  the  testimony  men- 
tioned in  the  return,  and  the  evidence  given  by  the  witnesses 
named,  were  not  suthcient  to  authorize  the  magistrate  to  rind 
Snyder  probably  guilty  of  the  offense  charged.  Afterwards, 
under  the  requirements  of  the  court,  an  amended  reply  was  tiled, 
Betting  forth  in  detail  tha  evidence  of  the  prosecution  before  the 
justice. 

The  case  was  Bet  for  hearing,  and  was  heard,  on  the  3f»tli  of 
January,  1877.  On  the  hearing,  the  question  as  to  bail  and  tlie 
illegality  and  insufficiency  of  the  warrant  of  commitment  were 
waived,  and  the  only  allegation  relied  on  by  Snyder  was  the  one 
contained  in  the  petition  concerning  the  "alleged  want  of  prob- 
able cause."  The  counsel  for  the  respondent  admitted  that  tlio 
testimony  contained  in  the  reply  set  forth  all  the  eviileiico 
admitted  before  the  justice,  excepting  that  ])urportlng  to  have 
been  given  by  John  Hood,  one  of  the  witnesses  for  the  prosecution 
and  a  member  of  the  firm  of  Hood  &  Kincaids.  The  court  sum- 
moned John  Hood  as  a  witness  and  received  his  evidence  orally. 

Upon  an  investigation  of  the  criminal  charge  preferred  against 
Snyder  before  tlio  justice,  the  facts  of  the  case  were  found  to  be 
Bubstantially  as  follows : 


■n 


IN  HE  SNYDER 


231 


During  the  f.all  of  1876,  A.  J.  Snyder  was  engaged  in  buying 
and  shipping  stock  under  the  name  of  Snyder  &  Co.,  and  had 
made  several  sliipinents  of  stock  from  points  along  the  Missouri 
river,  Fort  Scott  &  Gulf  railroad,  to  D.  A.  Painter  &  Son,  who 
were  live  stock  brokere  and  commission  merchants  at  Kansas  City, 
Missouri.  One  J.  M.  Sliores  was  connected  with  Snyder  in  busi- 
ness. Hood  &  Kincaids  were  brokers,  having  a  banking  house 
at  Pleasanton,  Linn  county,  Kansas,  of  which  Mr.  Hood  was 
cashier  and  general  manager.  The  ilrm  of  D.  A,  Painter  &  Son 
was  composed  of  D.  A.  Painter  and  Charles  Painter.  On  the 
22d  day  of  Xovemhor,  1876,  Snyder  wont  to  Charles  Painter,  the 
l)ookkeeper  of  Painter  &  Son,  for  a  letter  of  credit,  took  it  to  tlie 
]\[artin  bank,  had  it  indorsed  by  the  teller,  returned  to  his  office, 
and  delivered  the  letter  of  credit  to  Snyder.  Snyder  looked  it 
over  and  remarked  that  he  tliought  there  would  be  bother  about 
it  on  account  of  the  words  "  bill  of  lading  attached."  At  his 
request,  Cliarles  Painter  wrote  out  another  letter  of  credit,  of 
which  the  following  is  a  copy  : 

"Kansas  City,  Mo.,  Nov.  32,  1876. 

^^ Messrs.  Hood  cfe  Kincaids,  Pleasanton,  Kansas: 

"Dear  Sirs:  We  will  honor  Messrs.  A.  J.  Snyder  &  Co.'s 
draft  on  us  to  the  amount  of  four  thousand  dollars  ($4,000),  to 
pay  on  live  stock  consigned  to  us. 

"Very  truly  yours,  D.  A.  PAINTER  &  SON." 

Snyder  took  this  letter  also,  remarking  that  if  he  couldn't  use 
the  one  he  would  the  other.  Snyder  then  went  to  Pleasanton, 
and  on  the  2.3d  he  called  at  the  banking  house  of  Hood  «fe  Kin- 
caids, and  presented  the  above  letter  of  credit  and  said  he  wanted 
to  get  money  to  buy  stock  with.  Hood  asked  liim  what  amount 
of  currency  ho  wanted;  he  answered  about  $2,000.  Hood  told 
him  they  were  short  in  currency,  but  should  send  up  to  Kansas 
VAty  and  have  some  shipped  down,  but  that  they  could  not  see  to 
the  shipping  of  stock.  In  this  conversation  Snyder  told  Hood 
the  cattle  would  be  shipped  to  Painter  &  Son.  Snyder  then 
telegraphed  to  Painter  «fe  Son,  that 

"  Your  letter  of  credit  says,  on  stock  consigned  to  us.  Hood 
&  Kincaids  can't  go  and  see  how  consigned.  Telegraph  to  H.  & 
K.  to  erase  that  part.     We  will  want  some  money  to-morrow. 

"SNYDER  &  Co." 


Vr  : 


m 


ii  ! 


m 


m 


232 


AMERICAN  CltlMINAL  KEPOKTS. 


On  the  Bame  day  Painter  &  Son,  in  answer  to  the  said  dis- 
patch, telegraphed  to  Hood  &  Kincaids :  "  We  will  honor  Sn3-der 
&  Co.'s  drafts,  to  ])ay  on  stoclc,  to  the  amount  of  four  thonsaiid 
dollars."  On  the  23d,  or  the  24th  (the  witness  Hood  fixes  the 
24th  as  the  date),  Snyder  again  called  at  the  bank  and  asked 
Hood  what  was  the  matter  with  the  telegram — and  then  stated 
ho  had  been  Lo  Fort  Scott  to  get  money  on  his  draft  on  Painter 
tfe  Son,  and  tliat  the  bank  there  liad  telegraplied  to  H.  &  K.,  and 
II,  tk  K.  had  answered  they  would  honor  the  draft  on  certain 
conditions,  that  he  had  bought  the  pick  of  a  large  lot  of  cattk\ 
and  wanted  money  to  pay  for  them.  Hood  thinks  ho  said  ahuiit 
one  hundred  head.  Snyder  tlien  stated  he  would  send  to  Painter 
A:  Son  and  have  the  letter  of  credit  modified.  After  tliis  con- 
versation, Snyder  took  the  cars  and  went  to  Fort  Scott.  On  the 
24th,  late  in  the  afternoon,  he  drove  out  to  D.  G.  Glasscock's,  in 
Vernon  count}',  Mo.,  nine  miles  northeast  from  Fort  Scott  and 
sixteen  miles  from  Prescott  (Prescott  is  on  the  railroad,  six  miles 
south  of  Pleasanton).  On  the  morning  of  the  25th  Snyder  and 
Cilasscock  went  out  and  looked  at  the  cattle  Glasscock  was  fat- 
tening, and  Snyder  made  a  bargain  for  the  cattle,  by  the  terms 
of  which  he  was  to  take  eighty  head  of  steers  at  .'U  cents  per 
j)oun(l,  87  or  ;')S  of  them  to  be  delivered  on  the  next  ]\[onday,  the 
2Tth,  and  the  balance  about  the  middle  of  February.  Snyder 
j)aid  (Jhisscock  $25  on  the  cattle  and  took  his  receipt  therefor, 
(ilasscock  also  sold  him  his  hogs,  twelve  or  fifteen  in  number, 
and  agreed  to  try  and  get  up  a  carload.  Snyder  tlien  returned 
to  Pleasanton,  and  oi»  the  same  day  telegraphed  to  Painter  &  Son  : 

"  Tlie  words  to  jkv/  on  .ffork  h\  the  way.  Say  to  Hood  you 
will,  or  will  not,  pay.     Answer  quick. 

"SNYDEIl  &  Co." 

Painter  it  Son  telegraphed  back  to  Hood  &  Kincaids,  "We 
will  honor  Snydi'r  it  Co.'s  drafts  to  the  amount  of  four  tlntusand 
dollars."  This  telegram  was  received  by  Hood  before  Snyder 
calli'd  at  th(!  bank  on  the  2atli.  AlxMit  noon  un  the  25th  Siivder 
went  to  tlie  bank  and  a^kec|  Hood  how  it  was  '•  in  regard  tit  that 
nionev  to-(la\."  Hood  told  him  that  he  thotiifhl  I'vervthin^r  was 
right  now,  and  asked  him  how  innch  money  he  woultl  need.  He 
said  he  thought  that  $.'5,(100  would  do.  Snyder  made  draft  for 
the  amount  on  1).  A.  Painter  it  Son,  and  lloud  ])aid  him  $1,500 
in  currency,  and  a  certified  check  on  the  First  National  Uaidc  at 


Kari 

supi) 

said 

t^tati 

iind 

ho  oi 

(Icr 

ticalc 

and 

Thi^ 

lloui 


mmm 


IN  HE  SNYDER. 


233 


Kansas  City  for  $1,500.  Hood  said  to  him  at  the  time  that  ho 
gupposcd  the  caf^le  would  be  sliipped  on  Monday  night.  Snyder 
F.ud  no,  tliat  it  would  take  a  couple  of  days  to  get  them  to  the 
ttutiun,  that  they  were  about  nine  miles  Jiortlieast  of  Fort  Scott 
and  sixteen  miles  from  Prcscott.  Hood  remarked  to  him  that 
lie  uiight  to  get  them  to  Fort  Scott  in  less  time  than  that ;  Sny- 
der said  the  cattle  were  to  be  delivered  and  paid  for  at  Young's 
scales,  that  Young's  scales  were  nearer  on  the  rc»ad  to  Prescott, 
and  that  the  cattle  were  fat  and  would  have  to  be  driven  slow. 
This  conversation  between  Hood  and  Snyder  occurred  while 
Hood  was  certifying  to  the  check.  Snyder  first  drew  a  draft  for 
§;{.(i(H),  but  its  terms  being  unsatisfactory  to  Hood  in  not  being 
payable  at  sight,  Hood  made  one  out,  inserting  therein,  "Pay  to 
the  order,  at  sight,  of  Hood  &  Kincaids,"  etc.,  and  Snyder  signed 
tlie  lirm  name  of  "  Snyder  &  Co."  thereto.  Hood  testified  he 
believed  all  the  representations  made  to  him  by  Snyder  to  be 
true,  and  that  he  was  induced  to  deliver  to  Snyder  the  $1,500  in 
currency,  and  the  certified  check  of  $1,500,  on  November 
25th,  upon  Snyder's  statement  that  he  had  enough  cattle 
bought,  and  that  he  would  ship  them  to  Painter  &  Son,  and 
believing  that  Painter  &  Son  would  pay  this  draft  when  the 
cattle  were  disposed  of,  if  not  before;  and  further,  that 
he  would  i)ay  H.  &  K.  twenty-five  cents  on  the  $100  for 
exchange.  Hood  also  testified  that,  at  the  time  he  delivered 
tlie  money  and  certified  check  to  Snyder,  he  did  not  know 
the  financial  condition  of  D.  A.  Painter  &  Son,  and  that  he 
did  not  have  at  the  time  such  confidence  in  Painter  &  Son  as 
to  have  advanced  the  money  obtained  on  their  credit  alone;  that 
liu  had  conliden(.c  in  tlu'ir  integrity,  not  in  their  financial  ability, 
and  his  contidence  in  their  integrity  was  based  upon  representa- 
tions that  had  been  made  to  him  by  different  parties  that  tliey 
were  respectable  dealers.  Snyder  returned  to  Fort  Scott.  On 
Sunday,  Snyder  and  Shores  together  went  again  to  Glasscock's 
house,  and  called  him  out  to  the  fence.  Shores  said,  "  Mr.  (Jlass- 
oock,  we've  come  to  see  if  we  couldn't  get  you  to  hold  these 
cattle  another  tlwy.  Our  llmmcial  matters  is  so  we  can't  ])ay  for 
'em  to-morrow,  and  if  it  would  suit  you  as  well,  we'd  like  for 
you  to  hold  "I'ni  aiiotlii-r  day."  (ihisscock  rather  objected  to 
this.  Then  Shores  said,  in  the  presence  of  Snyder,  "If  you 
Would  rather  do  it,  we'll  have  to  get  you  to  ship  the  cattle  in  your 
own  name."     Glasscock  then  consented  to  keei)  the  cattle  another 


'^'t 


m" 


m- 


f'ri 


234 


AMERICAN  CRIMINAL  REPORTS. 


day.  Snyder  then  went  to  Fort  Scott  and  en<;aged  four  cars  of 
Ming,  the  agent  of  the  Mo.  R.,  Ft.  Scott  &  Gulf  raih-oad,  to  he 
used  Tuesday  night  for  Ghisscock's  cattle,  and  others.  On  Mon- 
day he  went  to  J.  V.  Morrison,  a  cattle  shipper  who  shipped 
cattle  over  the  M.,  K.  &  T.  railway,  told  him  he  had  hought 
Glasscock's  cattle,  and  made  arrangements  with  him  to  have  him 
ship  the  cattle  in  his  own  name  to  St.  Louis  ;  told  him  to  order 
the  cars  and  attend  to  the  shipping  of  them,  and  also  made 
arrangements  with  him  to  go  out  to  Glasscock's  with  him  the 
next  day.  On  Monday  night,  Snyder  and  Shores  went  to  Glass- 
cock's house,  stayed  over  night,  and  Tuesday,  the  2Sth,  in  the 
morning,  they  went  to  "cut  the  cattle  out.''  Snyder  selected  oS 
to  take,  and  then  turned  the  rest  back.  Glasscock  examinee)  the 
cattle  turned  back,  and  found  Snyder  had  turned  back  many  of 
the  cattle  he  had  agreed  to  take  then,  and  in  their  place  had 
selected  cattle  which  were  more  profitable  to  feed.  Glasscock 
then  insisted  that  if  he  took  the  cattle  he  had  selected,  he  should 
secure  him  that  he  would  take  the  balance.  This  Snyder  would 
not  do,  saying  that  he  wasn't  prepared  to  leave  the  means. 
Glasscock  still  insisted  on  security,  and  finally  Snyder  said :  "  If 
you  can't  do  better  than  what  you  proposed,  I'll  have  to  let  the 
trade  fall  back,"  and  Snyder  and  Shores  then  drove  off.  The 
cattle  selected  would  weigh  about  1,100  pounds,  and  the  38  head 
selected,  at  3 J  cents,  would  amount  to  $1,358.50.  At  the  feed- 
gate  they  met  Morrison,  and  told  him  that  the  trade  was  "  basted 
up  ; "  wanted  him  "  to  go  and  buy  the  cattle,  if  he  could — they 
would  have  nothing  more  to  do  with  him."  At  Fort  Scott 
Snyder  saw  Ming ;  "told  him  he  could  not  ship  and  withdrew 
his  order  for  cars."  They  then  got  on  the  freight  train  of  which 
Charles  Sykes  was  conductor,  and  left  F(»rt  Scott  about  1.30 
p.  M.  Snyder  jiaid  his  fare,  first  to  Prescott  and  then  from  Pres- 
cott  to  Pleasanton.  The  train  stopjied  iit  Plousanton  about  tit- 
teen  minutes.  Snyder  and  Shores  got  out  of  the  caboose.  Sny- 
der went  to  Hood  &  Kincaid's  baidv,  and  told  Hood  that  he 
wanted  some  more  money  to  finish  paying  for  the  stock  he  had 
bought;  that  he  was  in  very  much  of  a  hurry;  that  there  was  a 
freight  train  at  the  de})ot  ready  to  ])ull  out,  and  that  he  wanted 
to  get  back  to  Prescott  on  it.  Hood  asked  him  how  much  more 
money  he  wanted.  He  said  $850,  and  gave  a  draft  on  D.  A. 
Painter  &  Son  for  the  $850,  in  form  similar  to  the  $3,000  draft, 
and  Hood  gave  Snyder  a  certilied  check  for  the  amount.  Snyder 


IN  RE  SNYDER. 


235 


then  tried  to  get  on  the  pay  car  goinp:  north  (Preseott  is  south  of 
Pleasanton) ;  could  not  get  on  it,  and  then  got  on  to  Sykes' 
caboose  again,  showed  Sykes  a  large  amount  of  money,  rode 
with  liim  to  Kansas  City.  At  nine  o'clock  on  the  29th  he  got 
the  $850  check  cashed  at  "Wyandotte,  at  tiie  banking-house  of 
Northrup  &  Son.  The  $3,000  draft  in  favor  of  Hood  &  Kin- 
caids  was  sent  to  Kansas  City,  and  Painter  &  Son  being  unable 
to  pay  the  same,  it  was  protested.  On  the  29th,  D.  A.  Painter 
went  to  Wyandotte  to  see  Snyder  and  Shores,  and  asked  them 
what  luck  they  had  buying  cattle.  They  stated  that  they  had 
bargained  for  Glasscock's  cattle;  that  Glasscock  had  disagreed 
witli  them  about  the  selection  of  the  cattle,  and  would  not  let 
them  have  the  cattle.  Painter  said  a  $3,000  draft  had  come  on, 
and  they  had  been  forced  to  let  it  go  to  protest.  Painter,  Snyder 
and  Shores  then  went  to  a  saloon,  where  they  had  further  talk 
about  the  $3,000  draft.  Painter  insisted  that  if  they  hadn't 
bought  any  stock  they  must  have  the  money ;  that  the  money 
ought  to  go  to  pay  the  draft.  Snyder  replied  they  were  not 
going  to  commit  themselves ;  that  they  were  awaiting  develop- 
ments. Painter  suggested  that  if  they  were  koe[)ing  the  money 
for  what  his  firm  were  owing  them,  that  he  would  pay  them  on 
Friday ;  they  replied  that  they  were  not  going  to  commit  them- 
selves. After  Snyder  was  arrested  on  this  charge,  he  said  to  one 
James  Reynolds,  "that  they  had  put  about  $3,000  in  Painter's 
liands  last  spring,  and  he  didn't  like  the  way  things  were  going 
lately;  he  said  he  hadn't  lost  anything,  only  $700  or  $800." 
Reynolds  also  testified  :  "  I  can't  say  wliether  Snyder  said  that 
he  had  got  even  with  him,  and  was  going  to  keep  even  with  him, 
or  wliether  he  said  lie  had  taken  this  plan  to  get  even  witli  him." 
While  on  his  way  back  to  Pleasanton,  after  his  arrest,  Snyder 
said  to  McGlotlilin,  the  dejiuty  sheritf  who  had  him  in  charge, 
that  Painter  &  Son  owed  him  $;),900  ;  that  he  did  this  to  get  his 
money,  or  that  it  was  the  only  way  ho  had  to  get  his  money  out 
of  Painter  «fc  Son.  While  in  tiie  jail  at  Mound  City,  he  made 
a  similar  statement  to  Robert  Fleming.  He  also  said  he  didn't 
care  who  H.  &  K.  looked  to  for  their  money  ;  that  he  was  study- 
ing his  own  care.  Painter  &  Son  owed  Snyder  &  Shores  at  this 
time  from  $500  to  $700,  and  were  able  to  pay  that,  but  were  not 
able  to  pay  the  $3,850,  without  the  cattle.  They  were  persons 
of  limited  means.  Neither  Snyder,  nor  A.  J.  Snyder  &  Co., 
had  any  money  on  deposit  with  Hood  &  Kincaids  at  the  time  of 


230 


AMERICAN  CRIMINAL  REl'OHTS. 


tliese  transiictioiis,  and  Tlood  &  Kincaids  have  never  been  paij 
any  part  of  $3,850. 

The  foregoing  statement  of  facts  was  prepared  by  the  chief 
justiee.  Counsel  appearing  for  Snyder  in  this  court  were  J.  D. 
Snof7di/,  A.  F.  Elxj  and  TF.  J.  Buchan.  Counsel  for  respondent 
Laiiioreaux,  were  SUplien  11.  Allen  and  W.  R.  Bkldle.  The 
ease  was  argued  orally  by  Messrs.  Snoddy  and  Ely  for  petitioner, 
and  Messrs,  Allen  and  Blddle  for  respondent.  An  order  for 
tlie  release  of  the  petitioner  was  made  and  issued  on  the  9th  of 
February. 

Tlic  opinion  of  the  court  was  delivered  by : 

IToirroN,  C.  J.  The  questions  presented  in  the  case  for  onr 
consideration  will  be  disposed  of  by  us  in  tlie  order  in  which 
they  were  raised.  After  tlie  return  of  tlie  sheriff  had  been 
made,  and  the  reply  thereto  filed,  the  counsel  for  the  respondent 
objected  to  the  summoning  of  the  prosecuting  witness,  and  asked 
tliJit  the  petitioner  be  remanded  to  the  custody  of  the  officer,  as 
it  appeared  from  the  record  that,  upon  complaint  made  that  a 
criminal  offense  had  been  committed,  a  wari'ant  describing  the 
offense  had  been  issued,  the  prisoner  arrested,  a  preliminary 
examination  duly  had  before  the  proper  officer,  and  a  finding 
made  that  the  petitioner  was  guilty  as  charged  in  the  complaint 
and  warrant ;  that  thereon  bail  had  l)een  fixed  at  $.5,000 ;  that  the 
petitioner  had  not  offered  any  bail,  and  had  been  legally  committi'il 

for  trial,  and  no  question  was  made  on  account  of  ai 
court  or       dcfcct  iu  the  charge  or  process.     Under  §<^'!'' 
Judge;         Code,  ch.  80,  (ien.  Stat.,  703,  it  is  expressh  .ded 

Practice.  ,  .,  in.  ..  i' 

that  no  court  or  judge  sliall  inquire  into  the  'gality 
of  any  judgment  or  process  whereby  the  party  is  in  custody,  o 
discharge  him,  when  the  term  of  commitment  has  not  expired, 
when  the  party  is  in  custody  upon  any  process  issued  on  any 
final  judgment  of  a  court  of  competent  jurisdiction,  or  upon  a 
warrant  or  commitment  issued  from  the  district  court  or  any 
other  court  of  competent  jurisdiction,  upon  an  indictment  or 
information."  An  order  of  commitment  to  hold  a  prisoner  for 
trial,  issued  by  a  magistrate  before  whom  a  person  is  l)rought  for 
examination,  upon  a  charge  of  having  committed  an  offense,  after 
such  examination  is  concluded,  and  a  finding  made,  that  it  ajjpears 
that  the  prisoner  is  guilty  as  charged  in  the  complaint  and 
warrant,  is  not  "a  process  issued  on  -ciwy  final  judtjnK'nt  of  a 
court  of    competent  jurisdiction;"  nor  is  such   a  ('oiuiiiitnient 


IN  RE  SNYDER. 


237 


inclndod  in  any  process  named  in  §  671  of  the  code.  Hence, 
there  is  no  prohibition  in  said  section  to  prevent  a  court  or  judge 
from  inquiring  into  the  legah'ty  of  the  imprisonment  of  a  person 
under  a  commitment  of  an  examining  magistrate. 

Section  072  of  the  code  (Gen.  Stat.  1868,  763)  provides:  "No 
person  shall  Ijc  discharged  from  an  order  of  commitment  issued 
l)V  iiiiy  judicial  or  ])eiU'o  officer  for  want  of  bail,  or  in  case  not 
bailable,  on  account  of  any  defect  in  the  charge  or  process,  or  for 
alleo-ed  want  of  proI)able  cause;  but  in  all  such  cases  the  court  or 
judge   shall   summon    the   prosecuting  witness,  investigate   the 
criminal  charge,  and  discharge,  let  to  bail,  or  recommit  the  pris- 
oner, as  may  be  just  and   legal,  and   recognize  witnesses  when 
proper."     Under  this  section,  we  hold  that  when  a  writ  of  habeas 
rorpus  issues  on  a  complaint  of  illegal  imprisonment,  for  alleged 
want  of  probable  cause,  the  judge  or  court  issuing  the  writ  may, 
even  in  case  where  there  is  no  defect  in  the  charge  or  process, 
summon  the  prosecuting  witness,  investigate  the  criminal  charge, 
mid  discharge,  let  to  bail,  or  recommit  the  prisoner,  as  may  be 
just  and  legal.     This  section  gives  a  party  committed  for  a  crime 
by  an  examining  magistrate  an  appeal  from  his  commitment  by 
virtue  of  the  writ  of  habeas  corpus  :     The  People  v.  TomphinH^ 
1  Parker's  (N.  Y.)  Crim.  Rep.,  224,  240.     Upon  this  ground  the 
court  overruled  the  objection  to  the  hearing  of  evidence  in  the 
case,  and  the  motion  to  remand  upon  the  record.     But  the  court 
ordered,  on  its  own  motion,  that  the  petitioner  should  amend  his 
reply  by  setting  out  therein  as  fully  and  specifically  as  possible 
the  to?timony  given  by  the  various  witnesses  before  the  examin- 
inir  mai-istrate  and   named   in  the  return  of  the  sheriff.     The 
1  letter  practice  is,  where  a  petition  is  presented  for  a  writ  of 
habeas  corptis,  for  alleged  want  of  probable  cause,  to  embody  in 
the  pr'tition  all  the  testimony  taken  before  the  examining  magis- 
trate.    When  this  evidence  has  been  reduced  to  writing  by  the 
magistrate,   or  utider  his  direction,   a   copy  thereof   should  be 
obtained,  with  the  certificate  of  tlie  magistrate  thereto.     When 
such  testimony  is  not  reduced  to  wi'iting,  there  usualh'  is  but 
littlt  difficulty  in  setting  out  the  nuiterial  and  important  matters 
testified  to. 

Upon  the  hearing  of  the  case  on  the  merits,  the  peti    J^"'"*"  p""*"- 

.  .  1  .  TiTT  .  tenses;  be- 

tioner  objected  to  the  witness  John  Ilood  testifying  liefofin- 
that  he  was  induced  to  part  with  the  $1,500,  and  the  ty'Tcomp'e- 
certified  check,  on  the  statements  and  representations  ^^^ 


..^ 


238 


AMERICAN  CTIIMINAL  REPORTS. 


,11' 
t  i, 


of  Snyder,  on  the  ground  that  it  was  .  iconipetent  and  was  call- 
ing for  the  secret  mental  emotions  of  the  witness.  The  objection 
was  not  well  taken.  This  was  a  material  fact  to  be  established. 
It  was  proper  for  this  court  to  know  what  influence  the  represen- 
tations of  Snyder  had  upon  the  witness.  If  they  had  none  at  all, 
the  prosecution  must  have  failed.  "  The  fact  was  sought  after, 
and  not  the  opinion  of  the  witness :"  People  v.  IIerricl\  13 
Wend.,  87 ;  PeopU  v.  Sully,  5  Parker's  (N.  Y.)  Cr.  Eep.,  142  ; 
People.  V.  Miller,  2  Parker's  (N".  T.)  Cr.  Eep.,  197  ;  Thomas  v. 
The  People,  34  N.  Y.,  351.  Objections  were  also  taken  to 
Hood's  testimony  that  he  believed  the  representations  made  to 
him  by  Snyder  on  the  23d,  24th,  25th  and  2Sth  of  November. 
The  objections  were  overruled,  and,  for  the  reasons  above  stated, 
we  think  the  evidence  competent.  It  is  indisi)ensable  to  the  con- 
summation of  the  crime  of  obtaining  money  or  proi)erty  under 
false  pretenses,  that  the  person  who  has  been  induced  to  jiart 
with  his  money  or  property  thereby  must  believe  the  pretense  is 
true,  and,  conliding  in  its  truth,  must  by  reason  of  such  coiiti- 
dence  have  been  cheated  and  defrandetl.  We  do  not  mean  hy 
this  ruling  that  such  evitience  is  the  best,  nor  the  most  reliable; 
nor  that  it  is  necessary  for  the  prosecutor  to  state  he  believed 
and  relied  upon  the  pretense.  All  i>f  this  nuiy  be  inferred.  We 
simply  hold  the  evidence  admissible. 

The  material  (piestion,,  however,  in  this  case  is,  whether  on  the 
evidence  submitted  to  us  an  olfense  is  made  out  iigainst  Snyder 
for  false  pretense,  within  the  statute,  in  hi.s  obtaining  from  Hood 
&  Kincaids,  on  November  25th,  the  !?  1,5(10  in  currency  and  tlie 
certified  check  of  $1,500.  The  counsel  for  the  petitioner  ouii- 
tended  that  there  was  no  evidence  of  the  procuring  oi"  the  money 
,.^.  ^         or  check  by  any  false  pretense.     Fird :  Inasmuch  as 

What  con-     ^r       ^  i         •  i       i        ti 

Btiiuu;8  Hood,  at  tlie  time  he  let  Snyder  have  the  money  and 
faiHopre-  ^heck  ou  the  25th  of  Nov("ml)er,  liad  an  absolute  order 
m  the  form  of  a  telegram  from  Painter  *fc  Son  to  honor 
Snyder  &  Co.'s  drafts  for  four  thousand  dollars,  and  had  j)i'evi- 
ously  refused  to  pay  the  money  on  a  letter  of  credit,  wliicli  ho 
construed  as  re(piiring  him  to  see  to  the  shipping  of  the  stuck  to 
Painter  &,  Son,  it  is  conclusively  shown  that  hueh  telegrai)hic 
order  of  Painter  &  Son  was  the  sole  inducement  by  which  tiio 
money  and  check  were  parted  with  by  Hood.  Seconrl :  That  the 
representation  made  by  Snyder  to  Hood  that  he  had  bought  the 
pick  of  a  large  lot  of  cattle,  about  100  head,  was  true  on  the 


IN  RE  SNYDER. 


239 


25tli,  wlu'ii  the  irioiiey  and  check  were  obtained ;  and  that  the 
stiitciiiciit  that  the  cattle  would  be  shipped  to  Painter  &  Son  at 
Kansas  City  was  a  representation  or  assurance  in  relation  to  a 
future  transaction,  and  did  not  amount  to  a  statutory  false  pre- 
tense. As  to  the  first  proposition  of  counsel  of  the  petitioner  for 
his  discharge,  we  answer  that  we  are  not  satisfied  that  Hood 
parted  with  the  money  and  check  solely  on  the  telegram  of  credit 
of  the  25th.  The  testimony  tends  to  show  that  he  was  induced 
to  part  with  the  property  in  controversy  partly  on  that  telegram, 
partly  on  the  representation  of  Snyder  that  he  had  bought  about 
100  head  of  cattle,  and  partly  on  the  statement  that  he  would 
ship  the  cattle  to  J'ainter  &,  Son.  In  an  examination  of  his 
cliaracter,  we  are  not  to  pass  absolutely  on  the  guilt  or  innocence 
of  the  prisoner ;  if  we  shall  find  an  offense  lias  been  committed, 
and  there  is  probable  cause  to  believe  the  prisoner  guilty  thereof, 
the  prisoner  should  be  committed  for  trial.  As  difEerent  motives 
wore  assigned  by  the  prosecutor  as  operative  in  producing  the 
delivery  of  the  money  and  check  to  Snyder,  the  examining 
magistrate,  and  this  court,  are  oidy  to  ascertain  that  there  is  prob- 
able cause  to  believe  that  the  pretenses  proved  to  have  been  false 
and  fraudulent,  if  within  the  statute,  were  a  part  of  the  moving 
causes  which  induced  Ilood  to  part  with  the  property,  and  that 
Snyder  would  not  have  obtained  the  same  if  the  false  pretenses 
li;  (1  not  been  sui>era(lded  to  the  telegraphic  order  of  Painter  & 
Son  of  November  25th,  to  authorize  the  liolding  of  Snyder  for 
f.iiil.  It  is  not  necessary,  to  constitute  the  offense  of  obtaining 
('oods  by  false  pretenses,  that  the  owner  should  have  been 
iiuluced  to  j)art  with  his  j)ropert3^  solely  and  entirely  by  pretenses 
■ftliic'h  were  false;  nor  need  the  pretenses  bo  the  paramount 
cause  of  tlie  delivery.  It  is  sufllcient  if  they  are  a  part  of  the 
moving  cause,  and  without  them  the  prosecutor  would  not  have 
parted  with  the  jjroperty  :     Peoj^h  v.  Il<(>/nes,  11  AVend.,  547. 

This  leads*  us  to  examine  the  second  proposition  upon  whicli 
the  counsel  for  tlie  petitioner  claims  his  release,  and  to  consider  the 
ro])resentations  made  by  Snyder,  "that  he  had  bought  the 
piciv  of  a  large  lot  of  cattle,  about  100  head,"  and  tliat  preronse  u 
"he  would  ship  them  to  Painter  &  Son."     The  first  ""* within 
representation  was  substantially  true,  when  the  money 
and  clicck  were  ol)tainod  on  the  25th  of  Novend)er.     At  that 
time  the  cattle  had  been  contracted  for  by  Snyder  with  Glass- 
cock, and  a  part  of  the  consideration  paid.     This  representation, 


i  I 


f.. 

a 


Ir 


m 


I 


'i4 
Ml ' 


I'" 

III' 


240 


AMERICAN  CRIMINAL  REPORTS. 


when  made  on  the  23d  or  24th  of  November,  was  false.  On 
the  25th,  it  had  become  true.  Is  a  pretense  which  was  falsL' 
when  made,  within  the  statute,  if  true  when  the  property  \s 
parted  with  ?  We  think  not.  The  pretense  employed  is  only 
the  means  by  which  the  offense  is  perpetrated.  The  substance 
of  the  offense  consists  in  the  obtaininj^  of  the  property,  and 
thereby  with  a  fraudulent  intent  depriving  the  lawful  owner  dt 
that  which  prujierly  belongs  to  him.  If  a  party  by  his  own  acts 
makes  the  false  representations  good,  before  obtaining  the  pro])- 
erty,  there  is  no  consmnmatlon  of  the  crime,  and  there  is  no 
criminal  attempt,  for  it  follows  that,  when  there  is  a  change  ol 
purpose  on  the  part  of  a  person  seeking  to  obtain  property  by  a 
false  pretense,  bel'<tre  any  other  wrongful  act  is  coiniuittcd  tliaii 
the  making  of  the  false  pretense,  the  crime  of  the  attempt  is 
taken  away.  The  fact  that,  in  this  case,  Snyder  never  abandoned 
the  scheme  to  defraud  some  one,  does  not  militate  against  the 
conclusion,  that  the  pretense  must  be  false  in  fact  when  the 
property  is  parted  with.  How  can  it  be  said  that  Hood  rclicil 
upon  a  inha  representation  as  to  the  purchase  of  the  cattle  wlicii 
he  delivered  the  money  and  check,  if  at  that  time  the  representa- 
tion had  become  ti'uef  Xo  prop'jrty  was  parted  with  by  Hood 
on  the  23d  or  24tli.  The  representation  then  made  by  Snyder 
as  to  buying  the  ciiUle,  was  true,  on  the  '1M\,  and  before  W. 
obtained  the  money,  or  cheek  ;  and  if  he  is  to  l)e  held  for  the 
commission  of  a  crime  i)y  obtaining  property  under  false  jnc- 
tenses,  it  nuist  be  upon  some  other  representation  than  the  repi-e- 
sentation  on  the  "I'M  or  24th,  as  to  having  "bought  the  ])iek  of 
a  large  lot  of  cattle." 

As  to  the  representation  of  Snyder,  "that  lie  would  ship  the 
cattle  to  I'aiuter  and  Son,  at  Kansas  City."  we  foHow  aiithoi'itv 
ill  holding  such  statement  is  not  a  statutoi'v  fa,Ise  pretense.  Tlie 
False  pre-  false  prcteuscs  reliecl  upon  to  constitute  an  ui'iense  under 
be'ttsto"**  the  statute,  must  relate  to  a  past  event,  or  to  some  \m>- 
piistfirpre-  eut  existing  fact,  and  not  to  something  to  ha])pen  in 
KfiittactB.  the  future.  A  mere  promise  is  not  sulHcient :  Iie,v  i\ 
Young,  3  Term  R.,  98 ;  Rex  v.  Lee,  L.  and  C,  309  ;  Conunon- 
wealth  V.  Drew,  19  Rich.,  179;  State  v.  Foers,  49  Mo.,  54  l>; 
Dillingham  v.  State,  5  Ohio  .,  280  ;  Burrow  v.  State,  I'J  Ai-k., 
66;  State  v.  Mugee,  \\  Ind.,  i54;  The  State  v.  Green,  7  Wis., 
(576.  The  re])reHentation  that  the  cattle  would  bo  shipped  to 
Painter  ic   Sou,   related  to  an  event  wiiich   was  therual't.er  to 


IN  RE  SNYDER. 


241 


I    f 


happen.  It  was  a  promise  or  assurance  of  a  future  transaction. 
Upon  the  evidence  we  are,  therefore,  compelled  to  say,  that  as 
the  only  offense  charged  in  the  complaint,  and  in  the  warrant 
against  Snyder,  was  the  obtaining  of  the  $1,500  in  currency  and 
the  certified  check  of  $1,500  on  November  25th,  as  tlierein 
btated,  and  as  the  order  of  commitment  was  issued  on  the  finding 
of  the  examining  magistrate,  thiit  there  was  probable  cause  to 
l)oliove  Snyder  "gulhy  as  charged  in  the  complaint  and  warrant," 
there  is  no  legal  authority  for  liolding  tlie  petitioner  in  custody, 
nnd  he  must  be  discharged.  It  is,  j)crhaps,  unnecessary  to  add, 
that  in  point  of  moral  turj)itude,  Snyder  is  as  guilty  in  obtaining 
tlio  j)roperty  of  Hood  &  Kin(!aids  on  the  25th  of  November  on 
a  false  promise,  if  such  be  the  fact,  as  if  such  pretense  was 
within  the  statute.  The  criminal  law,  however,  cannot  reafh 
the  perpetrator  of  every  fraud.  "The  statute  may  not  regard 
mere  naked  lies  as  false  pretenses."  It  has  been  well  said  : 
"  The  operation  of  the  wisest  law  is  inipe 'feet  and  precarious; 
they  seldom  inspire  virtue;  they  cannot  always  restrain  vice; 
their  power  is  insuflicient  to  prohibit  all  tliat  they  condemn,  nor 
can  they  always  jmnish  the  actions  which  they  prohibit.''  We 
have  intentionally  abstained  from  commenting  upon  the  transac- 
tions of  the  2Sth  of  November,  when  Snyder  is  alleged  to  have 
obtained  a  certified  check  of  $850,  because  there  is  nothing  in 
the  proceedings  before  the  magistrate,  or  in  this  court,  to  prevent 
the  petitioner  from  being  arrested,  if  any  complaint  is  made, 
thi'ivfore :  Whether  a  crime  has  been  committed  in  that  regard, 
and  whether  there  is  probable  cause  to  believe  the  petitioner 
guilty  thereof,  may  be  a  nuitterof  future  examination  and  judi- 
cial determination.  In  this  Investigation,  the  testimony  of  facts, 
sul»s('(juent  to  the  25th,  was  received  by  us  only  to  explain  the 
transactions  of  the  25th  of  November,  and  to  shed  light  upon 
the  intent  of  Snyder. 

That  the  force  of  this  decision  rnsiy  not  be  misconstrued,  we 
may  proi)erly  say,  that  the  evidence  shows  there  was  no  collusion 
between  the  firm  of  Painter  &  Son  and  Snyder,  and  that  the 
purchase  of  tlie  cattle  by  Snyder  of  Glasscock  on  the  morning 
of  the  25th  was  made  in  good  faith.  It  is  evident,  however, 
that  Snyder  never  intended  to  ship  any  of  the  cattle  to  Painter 
&  Son,  and  all  his  statements  to  that  effect  were  in  pursuance  uf 
his  Bchomo  to  successfully  carry  out  liia  fraudulent  purpose. 

Let  the  petitioner  bo  discharged.     All  the  justices  concurring. 
Voi„  II.— 10 


'I 


■  I 


Iti 


^m 


242 


AMERICAN  CRIMINAL  REPORTS. 


Note. — All  of  the  authorities  agree  to  the  general  doctrine,  that  an  indict- 
able false  pretense  must  be  as  to  some  existing  fact,  and  that  a  false  pretense 
promissory  in  its  nature  cannot  be  tlie  subject  of  a  criminal  charge.  But  I  lie 
courts  are  somewhat  divided  in  their  application  of  this  principle.  This 
dilTerence  is  sharply  presented  by  the  two  cases  of  Raniiey  c.  People,  22  N.  Y., 
413,  and  Com.  v.  Parker,  Thach.  (Mass.)  Cr.,  24.  The  facts  in  both  casiM 
were  substantially  the  same.  In  each  case  the  prosecutor  was  induced  to  pny 
the  prison(!r  money,  the  prisoner  promising  to  obtain  the  prosecutor  a  situii- 
tion  and  alleging  at  the  same  time  that  he  had  a  situation  vacant,  and  in  whicli 
he  would  put  the  prisoner.  There  was,  in  fact,  no  such  situation  vacant,  and 
the  prisoner  did  not  obtain  any  situation  for  the  prosecutor,  and  never 
intended  to.  The  New  York  court  held  that  there  was  no  indictable  false 
pretense,  as  the  prosecutor  relied  upon  the  promise,  the  pretense  as  to  an 
existing  vacancy  and  the  promi,sc  being  in.separable.  The  Ma.ssiichiisetts 
court  held  that  the  pretense  as  to  the  existing  vacancy  was  an  indictal)le  fal.se 
pretense,  although  without  the  promi.se  it  would  be  of  no  legal  imporlance. 
The  Supreme  Court  of  Michigan,  in  WiiiKloir  >\  Pioph;  which  will  apjiear  in 
38  Mich.,  not  yet  out,  hold  with  the  Supreme  Court  of  Massachusetts,  disap- 
proving Banney  «.  People. 


Pkiition  of  Skmlkk. 

(41  Wis..  TAl.) 

Habeas  Cokpus:  When  writ  denied — Not  a  ntbstitute  for  appeal  or  writ  of 
error — Cane  stated  —  Iiupri»onment  in  default  of  bail,  on  criminal  charge  : 
bail  subsequently  given  on  secvrul  complaint  for  same  offense. 

Where"  the  facts  stated  in  a  petition  for  a  writ  of  habeas  corpus  and  the  papers 
tliereto  annexed,  if  established,  will  not  warrant  the  discharge  of  the 
prisoner,  the  writ  will  be  denied. 

Tlio  writ  of  habeas  corpus  is  not  designed  to  perform  the  ofllce  of  an  appeal  or 
writ  of  error;  and  cannot  be  resorted  to  for  the  purpose  of  reviewing 
orders  or  judgments  which  are  merely  erroneous,  made  or  rendered  by  a 
court  which  had  jurisdiction  of  the  subject  matter  and  of  the  person. 

Thus,  one  who  is  imprisoned  in  default  of  bail,  by  order  of  a  circuit  court  of 
this  state,  in  which  a  criminal  information  is  pending  against  him  for 
eml)e7,zlement  of  nu.Mcys  in  his  pcwsession  as  county  treasurer,  will  not 
be  discharged  by  this  court  upon  habeas  corpus,  on  the  ground  that  the 
information  is  insufllcient  in  charge  him  with  any  offense,  and  that  the 
circuit  co<irt  erred  in  refusing  to  rpiasli  it  for  that  reason. 

Wlien!  thv)  petitioner  also  alleges  lliat,  upon  a  complaint  subsequently  made 
before  a  magistrate,  ho  was  iield  to  bail  and  gave  (lie  bail  required,  and 
that  the  ofTense  thus  complained  of  was  the  samf  as  that  described  in  the 
information  previously  liN'd,  liul  this  courl.  \\\nm  inspecting  such  com- 
plaint and  other  papers  annexed,  rannot  assuiiK?  that  the  offense  cliarged 
is  Iho  same,  it  denies  the  writ,  with  a  sug'jestinn  that  the  circuit  cr)iui, 
on  the  prisoner's  application  for  that  purpose,  should  ini|uire  into  the 
fact,  and,  upon  tluding  It  to  be  as  alleged,  should  grant  the  proper  relief 
In  respect  to  bail. 


■-z^ 


PETITION  OF  SEMLER. 


243 


Application  for  a  writ  of  Habeas  Corims. 

This  WHS  an  application  to  this  court  for  a  writ  of  habeas 
corpus,  upon  grounds  which  were  thus  stated  by  Mr.  Justice  Cole 
in  his  opinion  herein  as  originally  prepared  : 

''  It  appears  from  the  petition,  and  the  papers  annexed,  that 
the  petitioner  was  arrested  in  August,  1870,  on  a  complaint  and 
warrant  charging  him  with  the  crime  of  embezzling  $10,000  of 
the  moneys  of  Washington  county,  on  the  first  day  of  February, 
1876,  which  moneys  were  then  in  his  possession  and  intrusted  to 
his  care  as  treasurer  of  the  county.  The  petitioner  waived  an 
examination  before  the  magistrate,  and,  failing  to  give  bail,  was 
coinniitted  to  the  jail  of  the  county.  At  the  K^ovember  term  of 
the  circuit  court,  1876,  an  information  was  filed,  containing  three 
counts,  in  which  the  petitioner  was  charged  with  having  embez- 
zled $10,000,  moneys  of  the  county,  which  he  held  as  county 
treasurer.  The  cause  was  continued  from  the  November  term 
to  the  regular  term  in  March  following,  and,  for  want  of  the 
required  recognizance,  the  petitioner  was  remanded  to  the  cus- 
tody of  the  sheriff.  At  the  next  term  of  tlie  court,  the  district 
attorney  entered  a  nolle  as  to  the  third  count  in  the  information, 
and  the  coui't  riifused  to  quash  the  first  and  second  counts  on  the 
motion  of  the  petitioner.  The  petitioner  was  required  to  recog- 
nize in  the  sum  of  $2,000  for  his  appearance,  etc.,  and,  in  default 
of  hail,  was  again,  by  an  order  entered  April  Qtli,  remanded  to 
the  custody  of  the  sheriti  until  bail  was  given.  It  appears  that 
the  petitioner  was,  on  the  subsequent  11th  day  of  A])ri],  taken 
from  jail  on  a  warrant  and  compelled  by  the  sheriff  to  go  before 
another  justice  of  the  peace  to  answer  a  complaint  procured  by 
tlie  district  attorney,  cliarging  him  with  embezzlement.  An 
examination  was  waived  on  this  charge,  and  the  petitioner 
entered  into  a  recognizance  with  suflicient  sureties  as  required  by 
the  justice,  and  was  discV.arged  from  further  restraint  in  that 
matter.  The  sheriff  then  seized  tlio  petitioner  and  conveyed 
liiin  to  jail,  where  ho  remains,  not  having  given  bail  according  to 
the  order  of  the  circuit  court.  And  the  petitioner  claims  tliat 
his  imprisonment  is  illegal,  and,  among  other  things,  states  tli... 
such  illegality  consists  in  this:  that  the  first  and  second  counts  of 
the  information  do  not  charge  him  with  any  offense,  and  are  void  ; 
and  that  the  order  of  the  circuit  court  rcfjuiring  him  to  give  bail, 
ftiid  committing  liiin  in  default  thereof,  is  illegal  and  void." 

For  the  petitioner,  a  brief  was  filed  by  Frishy,  Weil  dk  Barney ^ 


I 


mgm. 


i 


244 


AMKHICAN  CKIMINAI.  ItKI'OKTS. 


and  the  causo  waa  arguuU  orally  by  L.  F.  FrUhy.     Tlioy  con- 
teiidud, 

1.  Tliat  118  tlic  protection  of  the  lilxM-ty  of  its  oitizons  is  one 
of  the  chief  functions  and  hif^licst  j)rcrofjjativcs  of  the  state,  not 
only  \^\X\VihabeaH  corpus  a  preroj^ativc  writ,  hnt  an  a|)j>li(!aliiiii 
for  sucli  writ  is  a  "  j)rerofi;ativo  causo,"  and  within  the  original 
jurisdiction  of  this  court  in  everij  ciwe  wluire  a  citiztiU  <»f  this 
state  is  unlawfully  imprisoned  within  the  state.  In  referenct;  to 
this  point  they  citiid  and  (^oniniented  upon  Atfornt  ij-dciietuil,  r. 
Fan  Olairc,  :\7  Wis.,  4<M>,  H'J  r. ;  Att<>nifij-(hn.  v.  A'.  IK  Com 
paiiien,'<S^i  /</.,  512,  r>i;{,  517,  5 IS;  Attor»<i/-(!<'n.  v.  lilosNoin, 

I  Id.,  3l7-;{24,  ;W7,  ."^SO;  ;{  A/.,  157,  175  (1;   /ii,  m  Stacy,   !(» 
Johns.,  .'{.'Ji'] ;   ///   iw  ./ii<h:siiii,  15    Midi.,   42.'5;    ///    re  Sjxunjlir, 

II  77.,  .'{10;  Pcoph  I).  A/orfin,   1    I'ark.,  I'.M) ;  I'.ouv.  Law  Die, 
"  /Jafjcud   VorpuK;  "  llnrd  on  II.  (1  (tid  <mI.),  144,  I4«). 

2.  Tliat  tins  court,  on  liahc.ati  corjfun,  could  review  tlie  deci- 
sion of  the  circuit  court  refusing  to  (piash  the  information  upon 
which  tlu!  pcftitioner's  imprisonment  was  foumled,  ami  cotiM 
jiroperly  discliin'<r(>  him  from  su(^h  im|>riHonment,  if  it  should  liiid 
that  the  information  did  not  charge  him  with  any  oihtnse.  In 
.-luch  a  ciifie,  (Counsel  argued  at  len<rtli,  the  (circuit  court  t'ould  nut 
properly  be  said  to  have  c^ver  ac(juired  jurisdiction  of  the 
petitioner's  ptirson.  A  writ  of  habcati  corpus  is  necessarily  in 
ilu!  nature  of  a  writ  of  erntr,  operating  as  a  review  of  the  alle^^cd 
ille^alilies  in  the  proceedin<j;s  brought  up  by  it:  llurd  on  II.  ('. 
(2d  ed.),  ;};{()-;{2,  ;{5(),  ;{51,  ywo;  /inm/iuin.  V.  A/o/rissci/,  II 
(iray.  22i\,  2;{S  ;  Kr  j»irtc  Vcnjcr,  H  Hall,  .s5  it4  ;  .*;2  I 'a.  St.,  52m. 
A  (iourt  of  appellate  and  supervisory  jurisdiction  may  <lischart;v 
a  prisoner  held  on  criminal  process,  where  tlic  commitnu'tit  is 
voidable  only  :  llurd,  o5l,  .'S52.  In  hearings  uixler  our  statute 
(Tay.  Stats.,  I7!*2,  sees.  1,  4,  27),  upon  petition  for  a  writ  ot' 
Inlhcas  cofjuts,  it  wctiild  sec  i  to  be  the  duty  of  the  court  to 
incpiire  into  the  (;ause  of  the  imprisonnuMit,  and,  if  it  is  found  to 
be  uidawful  for  any  reason,  to  discharji;e  the  prisoner:  77/«; 
People  ti.  JlaHin,  1  Park.,  187,  lUl-7;  2  Kent,  28,  31;  Kurd, 

;wi-2. 

3.  That  the  second  arrest  of  the  petitioner,  while  Id  jail  under 
the  eonuuitnicnt  of  the  circuit  court,  his  beiuf^  taken  before  the 
justice  on  a  new  coni[)laint  and  warrant  for  the  same  cause,  and 
beintj;  then  admitted  to  bail  for  his  appearance  at  the  circuit 
court  to  answer  the  charf^e,  rendered  his  continued  iinprisonnient 


PE'llTION  OF  HKMI.KIl.  2  ir» 

iMioii  tlii^iirst  wai'i'iint  unhiwful :  Kiism;!!  on  CriiiH'K,  421.  TIk; 
acts  of  tlu!  (liHlric^t  atf,(»rncy  may  o|)(!rat(i  an  a  vvaiviii",  Wkv,  tin;  hvXh 
t,f  uihv.r  piiMio  odu'tii-H:  I  Wiw.,  414  ;  22  A/.,  iV.i ;  l.'J  Iowa,  44.".. 
'I'lit!  Af/nf/it't/  (fcncra/.,  rn/ifra,  argued  that  tliin  court  oiij^lit 
not  to  tala;  jiiriHdic.tioii  to  (hkiic  tliu  writ  in  tliiH  case;  tiiat  in 
respect  to  tiiitt  writ,  aB  in  rcHpoct  to  maiu/ai/iiiK,  injuiu'tion,  etc., 
lo  wiiirant  tliiH  court  in  aHsuniin<r  jurisdiction,  tiut  interest  of  the 
.-late  shoiihi  he  primary  and  proximate,  and  the  (|nestinn  at  issue 
should  allec't  the  stale  at  lar^e,  and  not  m(!r(;I_y  private  or  hx^al 
lii^lits  (AttoriKij-d'cut'nd  v.  /idiliraij  ('o.\s,  '.]^>  Wis.,  12.");  A/for 
iiiij  (ti'Uintl  IK  I'Mu  Claire,  '<)1  Id.,  442;  SldO;  n.  Wood,  :'.S  A/., 
71 ;  Stale  V.  Juneau,  (Jo.,  Id.,  554 ;  llahen  v.  Iloiird  of  Fjluva 
t'wn,  22  Id.,  lol,  1 10;  Uuh;  of  Court,  .lime  term,  18(15),  and  tiiat 
hiidi  is  the  ohvions  meanin;^  of  tiiat  provision  of  Htatute 
(Taylor  Statutes,  171)2,  section  .'{),  whicrh  coidines  the  iHsiiiiif^  of 
the  writ  tu  «)llicerH  in  tlie  (bounty  wliere  th(;  person  is  imprisoned. 
2.  That  m  the  cinMiit  court  ha<l  jurisdidion  of  the  Hubject 
matter  and  of  th(!  (hifcMidant,  the  order  of  tiio  court  refusinj^  to 
«juiitth  the  information,  wliich  the;  p(!titioner  was  htihi  to  answer, 
ciiuid  not  he  r(!vi(!W«!d  (»n  liaht'a,s  eorjniN,  and  that  tliis  writ  cnu 
Hot  i)e  niiide  to  perform  tiii;  functions  of  a  wi'it  of  error:  lure 
lUalr,  4  Wis.,  522;  In  re  O'Connor,  <»  Id.,  2S,S ;  In  re  Perry, 
;;(»  Id.,  2<;s;  in,  re  I'eandaU,  \\\  Id.,  177;  Peoplt  v.  (Ja-HHelx,  5 
Hill,  KM;  liurd  <mi  '!!.  C,  :{;'.2.  When  the  <'oiirt  liaK  jurisdic- 
tion, it  shall  deterniiiie  (!verv  (jiie.stioii  without  interft;reM(;e  hy 
any  (»ther  triliunal  (ilurd,  I!;)."*,  et  my.),  and  this  includiis  jurisdic- 
tion to  decide  upon  tin;  siillicieiicy  of  the  information  :  Sfafe  v. 
I/iinsir,  ;'..">  Wis.,  (!7.s.  .'».  'I'hat  the  information  was  sullicient, 
and,  if  oth(!rwise,  it  mi;;lit  lu;  anuiuded  on  the  trial.  Tay.  Stats., 
I'.)ll,  ^  14.  4.  'i'iiat,  the  sulisei|iieMt  produ(;tion  of  (Ik;  prisoruM- 
lit'fore  a  ma^ri.strate,  and  iIk;  pro<-ee(liii<rs  thereupon,  did  not 
alT(.>(;t  the  ri;>'lit  to  hold  him,  thoii/^h  the  ollicer  mi;;ht  Ik;  liahle 
(Hawk.  I*.  ('.,  I).  2.  ell.  r.>,  ,^  12,  p.  I'.M),  that  neilli(;r  tlu!  district 
att»»rney  nor  the  jaihtr  could  waive  or  prejiulice  tlu!  rif^ht  of  the 
btat(!  to  hold  and  try  th(!  petitioner,  and  that,  in  any  (Actnt,  tju^ 
prisoner  should  not  In;  <liscliar;r(;i|,  hut  should  Ix;  ri^nanded  for 
(•well  pHKH'tMlin^s  as  mi^lit  he  proper,  lliird,  4(1  et  nefj.j  Statev. 
VAuoni,  17  Wis.,  521  ;  Tay.  Stats.,  17!)7,  ^  21. 


:j 


i:  J:  ' 


!Si 


C\>i.K,  il.     This  is  an  applicatioji  for  a  writ  of  hahean  corp-u*. 
We  were  in  some  douht  whether,  upon  tlus  face  of  tin;  petition. 


r 


■mi  \l 


I; 


246 


AMERICAN  CRIMINAL  REPORTS. 


and  the  papers  annexed  to  and  made  a  part  thereof,  a  writ  shoul'l 
be  granted  by  this  court ;  or,  if  granted,  whether,  upon  tlie  facts 
stated,  the  petitioner  would  not  have  to  be  remanded  to  his  for- 
mer custody.  It  was  therefore  deemed  best  to  have  an  argument 
on  certain  points  in  the  application.  The  attorney-general  and 
the  counsel  for  the  petitioner  have  argued  questions  suggested, 
which  would  necessarily  have  to  be  considered  in  determiniiig 
whether  the  petitioner  would  be  entitled  to  a  discharge  from 
imprisonment.  If  these  questions  should  be  decided  against  the 
petitioner,  the  writ  would  be  unavailing,  even  if  granted.  And 
as  we  are  now  satisfied  that  upon  the  case  presented  the  peti- 
tioner could  not  be  iischarged,  the  writ  is  denied  on  that  ground 
alone,  as  was  done  i:-  the  cases.  In  re  Gregg^  15  Wis.,  479 ;  In  re 
Grvner,  16  Id.,  423,  and  Petition  of  MrCormick,  24  Id.,  492. 

One  question  upon  which  argument  was  requested  was,  whether 
the  practice  of  granting  writs  of  habeas  corpus  in  a  proper  case,  as 
it  has  heretofore  obtained,  has  been  afTeeted  or  should  be  changed 
in  view  of  the  recent  decisions  in  rogiird  to  the  original  jurisdir 
tion  of  this  court  over  writs  of  injunction,  mandainus  and  qtm 
warranto,  as  defined  and  limited  in  Attorney-General  v.  liail- 
way  Companies,  35  Wis.,  425 ;  Attornerj- General  v.  The  Oity 
of  Eau  Claire,  37  Id.,  400 ;  State  ex  ret.  Wood  v.  Baker,  38  7^/.. 
72,  and  State  ex  rel.  Cash  v.  The  Supervisors  of  Juneau  Co., 
Id.,  534.  This  question  of  jurisdiction  was  quite  fully  argued ; 
but,  for  the  reason  just  suggested,  it  is  not  necessary  to  decide  on 
its  application.  It  is  dismissed  with  the  remark  that  we  entirely 
concur  in  the  view  of  the  petitioner's  counsel  on  this  jioint,  that 
no  nile  should  be  adopted  restricting  the  jurisdiction  of  this 
court  over  tlie  writ  of  haheas  corpus,  which  has  ever  be  . 
regarded  as  the  best  safeguard  of  personal  liberty,  except  for  tlio 
most  weighty  reasons.  The  ])l('Tiary  power  of  this  court  over 
the  writ  has  frequently  lieen  asserted  and  exercised  under  the 
constitution,  and  has  hitherto  not  i)een  questioned.  But  we  pass 
from  the  jurisdiction  question  to  other  points  arising  on  the 
applicati(»n. 

Another  question  arising  in  the  case  is,  can  the  petitioner  be 
relieved  by  means  of  this  writ,  or  must  he  resort  to  some  other 
appropriate  process  to  review  and  correct  the  proceedings  of  the 
circuit  court?  This  leads  to  an  incjuiry  as  to  the  office  of  the 
writ,  and  what  matters  can  be  considered  upon  it.  And  at  the 
outset  it  may  be  ()l)served,  that  the  principle  is  well  settled,  that 


ill 


\    i 


'i 


PrriTION  OF  SEMLER. 


247 


a  writ  of  haleas  corpus  does  not  have  tlie  scope,  nor  is  it  intended 
to  ])erfonn  the  office,  of  a  writ  of  error  or  appeah     This  doc- 
trine is  almost  elementary  in  the  law.     The  writ,  then,  cannot  be 
resorted  to  for  the  purpose  of  reviewing  and  correcting  orders 
iiiul  judgments  which  are  erroneous  merely.     It  deals  with  more 
radical  defects,  which  go  to  the  jurisdiction  of  the  court  or  officer, 
aiKJ  which  render  the  jiroceeding  or  judgment  void.     A  distinc- 
tion hetween  a  proceeding  or  judgment  M'hich  is  void,  and  one 
tliat  is  voidable  only  for  error,  is  recognized  in  the  cases,  and 
must  be  observed.     Says  Dixon,  C.  J.,  in  Petition  of  Crandall, 
',\\  VV^is.,  177:    "It  is  conceded  that  for  mere  error,  no  matter 
liow  flagrant,  the  remedy  is  not  by  writ  of  lidbeas  corpus.     For 
eri'or,  the  party  imprisoned  must  prosecute  his  writ  of  error  or 
certiorari.    Nothing  will  be  investigated  on  habeas  cdrptis  except 
jurisdictional  defects,  or  illegality,  as  some  courts  and  authors 
ti'rni  it;  by  which  is  meant  the  want  of  any  legal  authority  for 
tlic  detention  or  iinprisoinnent :"     P.  179.     To  the  same  effect  is 
tlie  doctrine  laid  down  in  In  re  Blair,  4  Wis.,  522  ;  In  re  O'Cov- 
twr,  0  /(/..  2SS ;  In  re  Perry,  30  Id.,  2(58.     Now,  the  inquiry  is, 
in  tlie  liglit  of  those  adjudications,  did  the  circuit  court  act  with- 
out jurisdiction,  or  in  excess  of  its  jurisdiction,  in  the  matter 
conipluinefl  of.  or  did  it  make  jnerely  a  wrong  decision?     There 
can  l)e  no  doubt  that  the  circuit  coun   had  jurisdiction  of  the 
person  of  the  petitioner,  and  of  the  oU'eiise  cliiirged  in  the  infor- 
mation.    But  it  is  claimed  that  the  first  and  second  counts  in  the 
inl'ormatifm  charged  no  offense;  in  other  words,  that  the  informa- 
tion is  insnilicii'tit,  and  tliat  the  motion  to  quash  for  that  reasfni 
should  be  sustained.     This  may  be  at  once  ct)nceded,  btit  what 
follows?     Manifestly  this,  that  the  circuit  court  gave  a  wrong 
decision  where  it  clearly  had  jurisdiction,  in  holding  a  defective 
information  good.     The  court  committed  an  error,  but  there  is 
no  ground  for  saying  it  acted  without  jurisdiction  in  rendering 
its  decision.     If  a  demurrer  had  ])een  filed  to  the  information, 
and  overndcMl   by  the  court,  precisely  the  same  question  would 
have  been  presented.     It  is  a  case  of  error,  for  which  the  peti- 
tioner can  oidy  have  relief  on  writ  of  error  or  some  other  appro- 
])riat(!  ]>roces8  of  review.     He  canmtt  have  relief  on  a  writ  of 
hdheas  corpus^  without  making  such  writ  perform  all  the  office 
of  a  writ  of  error.     This  seems  very  obvious.      JS^or  does  the 
fact  that  this  court,  under  the  constitution,  has  appellate  jurisdic- 
tion over  the  circuit  courts,  in  any  way  affect  the  question  before 


H\  .'     If 


«i  ' 


•;   { 


248 


AMERICAN  CRIMINAL  REPORTS. 


US.  For  this  court  can  only  exert  revisory  or  appellate  jurisiHctioii 
on  proper  process,  proceeding  according  to  the  rules  of  law.  It 
cannot  overlook  and  disregard  the  well  established  distinction 
between  the  scope  and  operation  of  a  w^rit  of  error  and  a  writ  of 
habeas  coi^xis,  and  make  the  latter  a  substitute  for  the  former. 
And  the  distinction  has  been  clearly  recognized  in  the  above 
decisions.  In  the  case  of  Ilanser  v.  The  State  of  Wisconsin, 
33  Wis.,  67S,  a  strictly  analogous  question  was  considered.  Tlint 
was  a  certiorari  to  review  the  decision  of  the  municipal  court  of 
Milwaukee  refusing  to  quash  a  criminal  information  for  a  libel 
against  a  corporation.  It  was  claimed  that  a  corporation  could 
not  be  the  object  of  a  criminal  libel,  and  that  the  municipal  court 
erred  in  holding  the  contrary.  But  this  court  held  that  even  if 
that  position  was  well  taken,  the  real  question  presented  to  the 
municipal  court  for  decision  was,  whether  the  information  did  or 
did  not  charge  the  accused  with  the  commission  of  a  criminal 
offense,  and  that  this  was  in  no  sense  a  jurisdictional  question. 
It  refused  to  review  the  decision  on  the  motion  to  quash,  upon 
certiorari,  and  quashed  the  writ.  The  operation  of  the  writ  of 
certiorari  is  certainly  as  extensive  as  the  writ  of  habeas  corjnis i 
still  this  court  declined  to  examine  on  that  writ  the  correctness 
of  the  ruling  of  the  municipal  court  in  refusing  to  quash.  The 
reason  ahd  principle  of  that  decision  are  directly  applicable  to 
the  case  at  bar.  80  in  Ex  parte  Booth,  3  Wis.,  145,  the  petitioner 
applied  to  this  court  for  a  writ  of  hahcas  cwjnis  to  discharge  him 
from  imprisonment.  It  appeared  that  ho  was  in  confinement  by 
force  of  a  wai-rant  of  the  district  court  of  the  United  States ; 
and  that  the  object  of  the  imprisonment  was  to  compel  him  to 
answer  an  indictment  for  a  violation  of  the  fugitive  slave  law. 
That  law  had  been  held  to  be  unconstitutional  by  tliis  court  in  a 
previous  cas*^.  Whiton,  C.  J.,  says:  "These  facts  show  that 
t.ie  district  court  of  the  United  States  has  obtained  jurisdiction 
of  the  case,  and  it  is  apparent  that  the  indictment  pending  against 
the  petitioner  is  for  an  offense  of  which  the  courts  of  the  United 
States  have  exclusive  jurisdiction.  We  do  not  see,  therefore, 
how  we  can,  consistently  with  the  principles  of  our  former  deci- 
sion, interfere,"  p.  148.  The  writ  was  denied.  The  petition 
before  us  shows  that  the  applicant  is  committed  on  an  order  of 
the  circuit  court  for  want  of  bail.  He  is  lieNl  by  the  process  of 
a  court  of  competent  jurisdiction,  wliicli  had  authority  to  make 
the  order.     For  these  reasons,  neither  the  sufficiency  of  that  order 


th 


view  ( 


unc 


the 


PETITION  OF  SEMLER 


nor  the  correctness  of  the  decision  on  the  motion  to  quash  will 
now  be  inquired  into. 

But  we  think  it  would  be  very  proper  for  the  circuit  judge,  on 
application  of  the  petitioner,  to  inquire  whether  any  cause  has 
arisen  since  the  making  of  the  order  of  the  9th  of  April,  for  put- 
tin*''  an  end  to  the  commitment  upon  it,  or  for  admitting  the 
petitioner  to  bail  on  his  own  recognizance.  It  is  stated  in  the 
petition  that  the  offense  charged  in  the  complaint  made  subse- 
quent to  the  order,  is  the  same  offense  as  that  attempted  to  be 
charged  in  the  information.  Notwithstanding  this  statement, 
we  do  not  feel  justified  in  assuming  that  it  is  the  same  offense,  in 
view  of  the  second  complaint  and  other  papers  annexed  to  this 
petition.  According  to  these  papers,  it  would  seem  that  the 
petitioner  was  proceeded  against  for  another  offense,  or  a  differ- 
ent embezzlement  from  the  one  set  out  in  the  information.  The 
circuit  judge  can,  however,  readily  determine  whether  this  is  so, 
and  if  it  is  not,  afford  the  proper  relief  in  respect  to  bail.  The 
petitioner  has  given  a  sufficient  recognizance  on  the  second  com- 
plaint, and  this  fact  the  circuit  judge  sliould  and  doubtless  would 
<ltem  a  valid  ground  for  admitting  him  to  bail  on  his  own  recog- 
nizance if  the  charges  are  for  the  same  embezzlement. 

Excessive  bail  is  forbidden  by  the  constitution,  and  it  is  evi- 
dent that  double  bail  might  be  excessive.  It  is  true,  there  was 
1)0  examination  on  the  second  arrest,  but  it  will  not  be  difficult 
to  ascertain  from  the  district  attorney  whether  that  prosecution 
is  for  the  same  embezzlement  as  the  one  charged  in  the  informa- 
tion. If  it  is,  the  circuit  court  can  make  the  proper  order  in 
respeet  to  bail.  It  seems  unnecessary  to  issue  the  writ  from  this 
court  to  inquire  into  the  matter,  since  to  do  so  would  subject  the 
^tate  and  the  petitioner  to  the  trouble  and  expeni^e  of  an  investi- 
j.Mtion  here,  which  could  be  had  tnore  conveniently  before  the 
circuit  judge.  Besides,  tiie  writ  was  not  asked  for  on  any  such 
ground  or  for  any  such  ]iui'|iuse.  Those  suggestions  are  made  for 
the  guidance  of  all  concerned.  I>ut,  upon  the  facts  stated  in  the 
petition,  the  writ  must  be  denied. 

By  the  cf)uur.     It  is  so  ordered. 


in,' 


■'  vVt 


r 


I  h" 


14: 


PC  I 


1' 


I.?. 


1   1 

^1 


'M 


il 


250  AJIERICAN  CKI.MINAL  REPORTS. 


HoLLET  V.  State. 

(15Fla.,  688.) 

Habeas  Corpus  :    To  be  admitted  to  bail. 

A  party  indicted  for  murder  is  entitled,  upon  proper  application,  to  a  writ  of 
habcds  corpus  for  the  purpose  of  showing  such  facts  as  may  satisfy  the 
court  that  the  proof  is  not  strong  or  the  presumption  is  not  great  that  lie 
is  guilty  of  a  capital  offense,  and  that  he  is  entitled  to  be  disclmrgt'd  oa 
bail.  The  indictment  charging  a  capital  offense  is  not  conclusive  upna 
such  application,  under  the  statute,  as  to  the  character  of  the  testituuuy. 

Writ  of  error  to  circuit  court  of  Jackson  county. 
McClellan  &  Milton,  for  plaintiif  in  error. 
The  Attorney-General,  for  the  state,  submitted  the  case  on  the 
autliority  of  Finch  v.  State,  reported  in  this  volume. 

Eandall,  C.  J.  The  plaintiff  in  error,  indicted  for  murder, 
applied  to  the  court  for  a  writ  of  habeas  corpus  for  the  purpo,*ti 
of  discharge  on  bail,  upon  the  ground  that  he  wa.s  not  guilty,  ami 
upon  the  ground  that  the  proof  was  not  evident,  nor  the  "  pic- 
sumption  great;"  that  the  evidence  on  the  part  of  the  state  was 
merely  circumstantial  and  hearsay,  and  does  not  even  raise  a  pie- 
sumption  of  guilt;  and,  further,  that  he  is  an  invalid  and  liis 
health  will  be  impaired  by  coniinement  in  jail  until  the  next 
term  of  the  court. 

The  judge  refused  to  grant  the  writ  substantially  upon  the 
ground  that  the  finding  of  an  indictment  by  a  grand  jury  estab- 
lished the  fact,  for  the  purpose  of  this  application,  that  the  proof 
was  evident  and  the  presumption  great. 

At  the  last  term  or  this  court  we  held,  in  the  case  of  Finoh 
V.  The  State,  that  a  party  indicted  for  mui-der  is  entitlcMl, 
under  the  laws  of  this  state,  upon  habeas  eo)'j)us,  to  produee  such 
evidence  as  may  operate  to  convince  the  court  that  the  oifcnse  is 
of  such  grade,  or  that  there  are  such  strong  doubts  in  the  case 
that  a  jury  should  not,  upon  the  case  as  presented,  convict  of  a 
capital  offense,  and  be  discharged  on  bail. 

Of  course,  upon  such  an  application,  the  public  prosecutor 
should  have  sufficient  notice  of  the  time  and  place  of  the  hearinaj 
to  prepare  therefor  and  to  produce  evidence.  Whether  in  such 
case  the  public  interests  require  the  prosecutor  to  produce  any 
evidence  beyond  the  indictment,  must  be  judged  of  by  him  and 


iiiii 


EUVVIN  V.  STATE. 


by  the  court,  and  tlio  conclusion  of  the  court  upon  the  case  as 
presuuted  will  not  prejudice  the  state  or  the  accused  when  the 
facts  arc  presented  to  a  jury. 

The  order  of  the  circuit  court  is  reversed,  and  the  case  remanded 
with  direction  that  the  writ  he  grunted. 


1  and 


Ekwin  v.  State. 

(29  Ohio  St.,  186.) 

HoMirrPB  :  Self-defeme — JvoUfiahJe  and  cxemnble  Tiomieide — Erroneous  charge 
—I'remmption  of  malice  from  use  of  deadly  weapon  —  Impartial  jurors- 
Error  without  prejudice — Might  to  discharge  for  want  of  Iriai. 

The  respondent  was  in  a  shed,  the  right  of  possession  to  which  was  in  dis- 
pute between  himself  and  the  deceased.  Angry  words  having  passed 
between  the  parties,  the  deceased  advanced  with  an  ax  on  his  shoulder 
to  the  shed  in  a  threatening  munner.  The  defendant  warned  the  deceased 
not  to  enter,  but  without  heeding  this  warning,  the  deceased  advanced  to 
the  eve  of  the  shed,  almost  if  not  quite  within  striking  distance  of  the 
deceased,  when  the  latter  shot  hira  with  a  pistol  and  killed  him.  Held, 
that  if  the  respondent  was  lawfully  in  the  shed  attending  to  his  business, 
auil  without  blame,  he  was  not  bound  to  retreat  even  though  he  might 
have  done  so  with  safety,  but  might  defend  himself  where  he  was,  even 
to  the  taking  of  life,  if  necessary. 

Wlierc  a  man  pursuing  his  lawful  business  and  without  any  fault  or  blame  on 
his  own  part,  is  feloniously  assaulted,  he  is  not  bound  to  retreat  even 
though  he  may  do  so  with  safety,  but  he  may  defc'nd  himself  where  he  is, 
and  if  in  his  own  defense  he  necessarily  kills  the  felonious  as.saulter,  the 
killing  is  justifiable  homicide.  If  the  assaulted  party  is  himself  at  fault, 
he  is  bound  to  retreat  as  far  as  he  can  with  safety,  but  if,  having  retreated 
as  far  us  lie  can  with  safety,  he  necessarily  kills  his  adversary  to  save 
himself  from  death  or  grievous  bodily  harm,  the  killing  is  excusable 
homicide. 

Where  the  circumstances  of  the  killing  are  not  disclosed  by  the  evidence 
beyond  the  fact  thai  it  was  done  with  a  deadly  weapon,  the  law  presumes 
malice  fidiii  the  use  of  the  deadly  weapon;  but  where  all  the  facts  and 
circuiiistanees  attendant  upon  the  killing  are  disclosed  by  the  evidence, 
the  inference  of  malice  is  to  be  drawn,  if  at  all,  by  the  jury  from  all  the 
circumstances,  of  which  the  use  of  the  deadly  weapon  is  one. 

Where  the  evidence  is  conllicting,  and  a  part  of  it  tends  to  establish  justifi- 
able homicide  in  self-defense,  a  charge  that,  "in  this  case,  the  law  raises 
a  presumption  of  malice  from  the  use  of  a  deadly  weapon,"  is  erroneous. 

Pndcr  the  Ohio  statute  it  is  error  to  overrule  a  challenge  for  cause  to  a  juror 
who  states  that  he  has  formed  and  expressed  an  opinion  as  to  the  guilt  or 
innocence  of  the  respondent  from  reading  a  niport  of  the  testimony  of  the 
witnesses  given  on  a  former  trial,  even  though  he  states  also  that  he  feels 
himself  able,  notwithstanding  such  opinion,  to  render  an  impartial  ver- 
dict upon  the  law  and  evidence. 


:i|^ 


252 


AMERICAN  CRLMINAL  REPORTS. 


^um 


^V'! 


n   ij 


But  whore  a  juror  who  should  have  been  rejected  for  cause  is  afterwards  per- 
emptorily challenged  and  a  full  panel  of  impartial  and  acceptable  jurors 
is  obtained  before  the  respondent  has  exhausted  his  peremptory  chal- 
lenges, the  error  does  not  prejudice  him  and  is  no  ground  for  reversal. 

Under  u  statute  providing  that  u  person  under  indictment  who  has  given  bail 
for  his  appearance,  shall  be  discharged  if  not  brought  to  trial  before  the 
end  of  the  third  term  of  the  court  in  which  the  indictment  is  pending, 
unless  the  trial  is  postponed  on  his  application,  or  because  there  is  no 
time  to  try  it  at  such  third  term,  the  respondent  is  not  entitled  to  be  dig 
cliarged,  where  tli(;  trial  is  postponed  from  term  to  term  without  any 
objection  ou  his  part,  although  more  than  three  terms  pass  without  a 
trial.  In  order  to  get  the  benefit  of  the  statute,  the  respondent  must 
apply  to  the  court  for  a  trial  or  his  discharge,  and  if  the  prosecution  are 
ready  to  try  the  case  at  the  term  in  which  he  applies  for  his  discharge, 
but  are  prevented  from  trying  it  because  there  is  not  time  to  try  it  at  that 
term  of  court,  the  respondent  is  not  entitled  to  be  discharged. 

M<Ilvaine,  J.:  The  plaintiff  in  error  was  indicted  for  1io 
crime  of  murder  in  the  lirst  degree  at  the  Feb.  nary  term,  IbT'.^. 
of  tlie  court  of  common  pleas  of  Gallia  connty.  At  the  succeed- 
ing term,  in  May  of  the  same  year,  a  trial  was  luid  which 
resulted  in  a  verdict  of  guilty  of  murder  in  the  second  degree. 
This  verdict  was  set  aside  by  the  court,  and  the  defendant  was 
admitted  to  bail.  At  the  March  term,  1876,  he  was  again  put  upon 
trial,  convicted,  and  sentenced  for  murder  in  the  second  degree. 

At  the  several  terms  of  the  court  intervening  between  llkfay, 
1872,  and  the  October  term,  1875,  the  cause  was  continued  witli- 
out  objection  on  the  part  of  the  defendant,  who  from  time  to 
time  gave  bail  for  his  appearance  as  required  by  the  court 

At  the  last  named  term,  to  wit,  on  the  13th  day  of  Se])tember, 
1875,  the  defendant  moved  the  court  for  liis  discharge  under  sec- 
tion 162  of  the  criminal  code  ((!0  Ohio  L.,  311),  whicli  provides 
!i8  follows:  "If  any  person  indicted  for  smy  offense,  who  lias 
given  bail  for  his  appearance,  shall  not  be  brought  to  trial  betuic 
the  end  of  the  third  term  of  the  court  in  which  the  cause  is 
])ti'ding,  held  after  such  iiulictment  is  found,  he  shall  be  entitloil 
to  be  discharged,  so  far  as  relates  to  such  offense,  unless  tlic 
delay  happen  on  liis  application,  or  be  occasioned  by  the  want  of 
time  to  try  such  cause  at  such  third  term."  Two  days  therc- 
nfter,  to  wit,  on  the  15th  of  the  iiiontli,  the  same  being  the  lu.st 
day  of  the  term,  and  the  state  being  tluMi  ready  to  proceed  to 
tnal,  this  motion  was  overruled  by  the  court  and  the  catise  coii- 
iiiiued,  for  the  reason  that  there  was  no  time  to  try  the  cause  at 
that  term. 


Whe 

iiig,  it 
reason 
tenii  tl 
tlic  fita 
tried  at 
ofderc( 

2. 
venire, 
(jualitit 
foru'oi 
die  dei 
nc'sses  ( 
dcfeiidi 
from  f 


r 


ERWIN  t>.  STATE. 


253 


When  tlio  above  section  is  considered  with  section  163,  follow- 
ing, it  is  clear  that  a  defendant  can  not  be  discharged  for  the 
reason  stated,  except  upon  an  application  to  the  court  during  a 
teriii  th(3rcof ;  and  when  an  application  is  made  at  a  term  when 
tlio  sfiite  is  ready  to  proceed  to  trial,  but  the  cause  can  not  be 
tried  at  such  term  fur  want  of  time,  the  discharge  should  not  be 
ordered.     See  Ex  jyaiie  McGchan,  22  Ohio  St.,  442. 

2.  Uprn  the  last  trial,  several  persons  named  in  the  special 
veuire  for  thirty-si>  jurore,  were  examined  under  oath  as  to  their 
(juaiitii'iitions  as  jnrors,  who  stated  severally  that  they  had 
torii'od  and  expressed  an  opinion  as  to  the  guilt  or  innocence  of 
tlie  det'ondaiit  from  reading  a  report  of  the  testimony  of  wit- 
nesses offered  on  the  f<ji-mer  trial  of  the  ciise.  Thereupon  the 
defendant  cliallenged  such  jurors  for  cause.  But  it  appearing 
from  further  examination  of  such  jurors  that  they  felt  them- 
selves aide,  notwithstiindiiig  such  opinion,  to  render  an  impartial 
verdict  u])on  the  law  and  evidence,  the  court  refnsed  the  chal- 
lenges for  cause.  These  challenges  should  have  been  sustained. 
Sneli  jurors  are  not  rendered  competent  by  section  134  of  the 
criminal  code,  as  amended  February  10,  1S72  (GO  Ohio  L.,  11) : 
Frazie  v.  The  Staie,  23  Ohio  St.,  551.  It  appears  from  the 
record,  ho\vcv(-r,  that  each  of  thcae  objectioiiable  jurors  was  after- 
wards excused  on  a  peremptory  clialleiige,  and  that  a  full  panel  of 
impartial  and  acceptable  jurors  was  oi)ta:Med  from  the  persons 
named  in  the  special  ventre,  before  the  <lefendant  had  exhausted 
his  right  of  peremptory  challenge,  so  that,  in  fact,  no  prejudice 
resulted  t »  defi'n<laiit  from  such  crroiuxuis  ruling  of  the  court. 
^ee  MnnijK-  v.  The  State,   Ifi  Oh'o  St.,  221. 

3.  The  all'  ged  d<>ath  was  caused  l)y  a  shot  from  a  i)istol,  and 
till.  tcstiMKiuy  tended  to  ^llo\v  that  the  homicide  was  committed 
by  defendant  upon  a  sudiii'U  ijuarrcl,  and  in  defense  of  his  per- 

on  and  prO|>(.'rty.  The  di:  rge  ii'.  die  '  idictment  included  mur- 
.ier  in  the  second  degree  and  manslaughter.  The  court  properly 
delincd  these  crimes  to  the  jury  i^ui)stantially  in  the  words  of  the 
statute,  liaiiiidy:  "That  if  any  person  shall  purposely  and  tnali- 
eiously,  but  without  deliberation  and  preaieditation,  kill  another, 
every  such  person  shall  be  deemed  guilty  of  murder  in  the  second 
degree,"  and,  "That  if  any  person  shall  unlawfully  kill  another 
without  malice,  either  upon  a  sudden  quarrel  or  unintentionally, 
while  the  slayer  is  in  the  commission  of  some  unlawful  act,  every 
::U(;h  |K'rs(;n  shall  be  deemed  guilty  of  uumslaughtor."     Whcre- 


UJ 


1 


264 


AMERICAN  CRIMINAL  REPORTS. 


upon  the  court  said  to  the  jury,  "You  will  see  that  the  difference 
between  manslaughter  and  murder  in  the  second  degree  is  the 
aljsence  of  malice  and  purpose  to  kill."  And  thereupon  the 
court  proceeded  to  charge  as  follows:  "If  you  find  from  the 
evidence  that  the  defendant  used  a  deadly  weapon  in  this  case, 
and  that  death  ensued  from  the  use  of  such  deadly  weapon,  tin" 
the  law  raises  the  presuinj^tion  of  malice  in  tlie  defendant^  auu 
also  an  intent  on  Ms  part  to  kill  the  deceased.' 

We  can  well  see  how  the  jury,  under  these  instructions,  may 
have  been  led  to  convict  the  defendant  of  murder  in  the  second 
degree,  though  guilty  of  manslaughter  only,  or  even  though  not 
guilty  of  any  crime  whatever.  It  was  plainly  inferable,  from 
the  first  instruction  above  stated,  that  the  defendant's  crime  was 
not  manslaughter,  if  the  killing  were  intentional.  Such  is  not 
tbe  law  of  manslaughter.  If  the  killing  be  unlawful,  but  with- 
out malice,  as  upon  a  sudden  quarrel,  although  intentional,  the 
crime  is,  nevertheless,  manslaughter  only.  It  is  true  that  the 
jury  nmst  have  found  the  presence  of  malice  as  well  as  puri)ose 
to  kill ;  but  having  first  found  the  purpose  to  kill,  as  we  Jiiay 
suppose,  they  entered  on  the  inquiry  as  to  malice,  under  the 
influence  of  an  instruction  that  the  defendant  Wiis  guilty  of  mur- 
der, or  not  guilty  of  any  crime  whatever,  thus  exposing  the 
defendant  to  a  moral  inliucnce  against  him,  which  should  not 
have  had  lodgment  in  the  minds  of  the  jurors. 

But  the  latter  instruction,  though  not  so  clearly  erroneous,  was 
more  paljjably  j)rcjiidicial  to  tiu;  defendant  as  misleading  to  the 
jury.  As  an  abstract  ])n>position,  where  the  circumstances  of  a 
homicide  are  not  known,  further  than  the  mere  fact  that  the 
ileath  was  caused  by  the  use  of  a  deadly  weaj)on,  we  do  not  deny 
that  the  jury  may,  from  such  fact  alone,  infer  both  malice  and  ii 
pur|)ose  to  ki.l.  JJut  where  the  attending  ''inMimstances  are 
shown  in  detail,  some  of  which  tend  to  disprove  the  preiicnce  of 
malice  or  purpose  to  kill,  it  is  misleading  and  eiToneous  to  charge 
a  jury  that  in  such  a  case  the  law  raises  a  presumption  of  malice 
and  intent  to  kill,  from  the  isolated  fa(!t  that  death  was  cauwid 
by  the  use  of  a  deadly  weapon.  In  such  case  the  presence  of 
malice  or  intent  to  kill  must  be  determined  from  all  the  circuni- 
stances  proven,  including,  of  course,  the  character  of  the  'iVeMpoii. 
It  may  indeed  be  said,  witii  much  nsason,  that  the  use  of  aili;iilly 
weapon,  in  the  taking  of  life,  raises  the  same  presum|itinmi 
whether  other  attending  circumstances  be  shown  or  not;    ami 


may 


ERWIN  V.  STATE. 


255 


that  when  otlicr  facts  and  circu instances  are  shown,  they  either 
6treiii,'tlicn  or  rebut  the  presumptions  so  arising  from  the  charac- 
ter of  the  weapon. 

The  question  before  us,  however,  is  not  one  of  mere  logic ; 
liut,  ratlier,  how  would  jurors  of  ordinary  understanding  inter- 
pret and  reason  upon  such  a  charge  ?  The  instruction  was :  *'  If 
yuu  find,  from  the  evidence,  that  the  defendant  used  a  deadly 
\v(  ;ipon  in  this  case,  and  that  death  ensued  from  the  use  of  such 
,,  11\  weapon,  then  the  law  raises  the  presumption  of  malice 
111  the  defendant,  and  also  an  intent  on  his  part  to  kill  the  dece- 
dent." 

This  was  not  an  abstract  proposition.  It  covered  the  case 
' '^fore  the  jury;  and,  in  our  opinion,  a  jury  of  ordinary  intelli- 
;,:'.uce  might  well  understand  that  the  law  ti\ed  the  guilt  of  the 
(iefendant  as  a  murderer,  if  the  evidence  ohowed  that  he  took 
the  life  of  the  deceased  by  the  use  of  a  deadly  weapon,  without 
regard  to  other  circumstances,  save  only,  as  they  were  told  in 
another  i)art  of  the  cliarge,  that  he  might,  under  certain  oirenm- 
stuiices,  justify  on  the  ground  of  self-defense.  But  our  objection 
to  the  charge  is  independent  of  all  questions  of  self-defense,  and 
relates  to  it  solely  as  bearing  on  the  case  which  the  state  was 
bound  to  prove  in  order  to  entitle  it  to  a  conviction. 

4.  It  is  also  claimed  that  the  court  below  erred  in  charging  the 
jury  as  to  the  law  of  defense. 

The  ease  shows  that  the  defendant  and  the  deceased,  his  son- 
in-law,  resided  upon  lands  belonging  to  the  defendant,  in  differ- 
ent houses,  situated  a  short  distance  apart.  Between  their  houses, 
hut  not  within  the  curtilage  of  either,  there  was  a  corn-crib  and 
tiled  suitable  for  the  storage  of  grain  and  farming  impletnents. 
This  building  was  situated  in  a  Held  cultivated  by  the  deceased  as 
a  (Topper,  and  had  been  used  by  him  for  the  storage  of  grain, 
and  also  by  tiie  defendant  for  the  storage  of  his  farming  tools. 
A  controvci'sy  arose  between  the  parties  as  to  tlie  right  of  posses- 
sion of  the  ituilding. 

Shortly  before  the  homicide  the  defendant's  tools  liad  boon 
thrown  out  of  this  shed,  and  were  replaced  and  secured  by  chains 
and  locks.  Tluiso  ch<>in8  were  afterwards  broken.  On  the  day  of 
the  lioiiii(  ide  the  defendant  was  in  the  shed  securing  his  tools, 
iKid  tlu!  (1, 'ceased  was  near  Ids  own  house,  and  close  by,  when 
ani.ry  words  piisstul  lu'tween  tliem,  whereupon  the  dec(>as(H,  with 
an  u.N  on  his  shoulder,  approached  the  shed  in  a  threatening  man- 


11. 


ii», 


256 


AMElilCAN  OllLMINAL  RP]P()RT9. 


"if 


fr: 


A  h 


'  ^"! 


Mor,  and  wlien  near  it  the  defendant  warned  liini  m)t  to  enter. 
Witliout  heeding  this  warning,  the  deceased  advanced  tci  the 
eve  of  tlie  slied,  perhaps  within  striking  dit-tance  of  tlie  defcinl- 
ant,  when  the  latter  shot  him  with  a  pistol,  inflicting  a  woiimi 
from  which  deatli  soon  followed.  Testimony  was  offered  on 
the  trial,  more  or  less  confliciting,  as  to  previous  bitter  feel- 
ings between  the  parties,  also  as  to  the  threatening  attitude  of 
the  deceased  at  the  time  of  the  shooting,  and  as  to  the  defend- 
ant's facilities  for  retreat  from  the  place  occupied  by  him  at  the 
time. 

The  portion  of  tl'e  charge  complained  of  was  as  follows :  "  If 
you  find,  from  the  greater  weight  of  the  evidence,  that  tlie 
defendant  was,  at  tlie  time  the  fatal  shot  was  fired,  in  the  lawful 
pursuit  of  his  business,  and  he  was  attacked  by  the  deceased 
under  circumstances  which  denote  an  intention  to  take  away  his 
life,  or  to  do  him  some  great  bodily  harm,  he  may  lawfully  kill 
his  assailant,  provided  he  use  all  means  in  l.in  power  otherwise  to 
save  his  own  life,  or  to  prevent  the  intended  harm,  such  as 
retreating  as  far  as  he  can,  or  disabling  his  adversary,  without 
killing  him,  if  it  be  in  his  power. 

"  Hut  if  the  attack  upon  him  is  so  sudden,  fierce  and  violent 
that  a  retreat  would  not  diminish,  but  increase  his  danger,  he 
may  kill  his  adversary  without  retreating;  and,  further,  if  vuu 
find,  from  the  evidence,  that  from  the  character  of  the  attack 
there  was  reasonable  ground  for  the  defendant  to  believe,  and 
from  the  evidence  you  find  the  defendant  did  honestly  believe 
that  his  life  was  about  to  be  taken,  or  he  was  to  sutler  great 
bodily  harm,  and  that  he  believed  honestly  that  he  would  be  in 
equal  danger  by  retreating,  then,  if  he  took  the  life  of  the  assail- 
ant he  woulil  be  excused." 

The  contention,  on  the  part  of  the  plaintilT  in  error,  is  that  tho 
court  below  erred  in  the  application  of  the  thtctrine  of  ''  retreat- 
ing to  the  wall."  The  (piestion  here  pres<'nt(Hl  has  not  Imcii 
decided  in  any  of  our  reported  cases,  although  it  has  luieii  often 
raised  and  variously  determined  in  our  w'/il  prins  courts,  h 
may  be  said,  indeed,  that  learneil  courts  and  able  text-writera 
have  left  the  question  in  some  obscurity.  The  Irue  solution 
must,  undoubtedly,  be  determined  upon  the  principles  of  the 
c(»unnon  law;  and  such  is  the  present  state  of  the  authorities, 
that  it  seems  necessary  to  examine  the  books  of  the  law  written  at 
n  period  before  thi;  apparent  or  real  confusion  had  an  existemio. 


fffr 


<,n'c!at 


EKWIN  r.    STATE. 


257 


When  tlie  common  law  had  become  a  system  as  nearly  perfect 
as  human  reason  could  make  it,  homicide  f<e  defendendo  was 
either  jiistiHable  or  only  excusable.  This  distinction  was  clearly 
recognized.  In  speakino;  of  manslaughter,  Lord  Coke  (3  Insti- 
tute, 55)  says:  "Some  be  voluntary,  yet  being  done  upon  inev- 
itable cause  are  no  felony — as  if  A  be  assaulted  by  B,  and  they 
fight  together,  and  before  any  mortal  blow  be  given,  A  giveth 
l)iu'k  until  he  cometh  to  a  hedge,  wall  or  other  straight,  beyond 
Avhicli  he  can  not  passe,  and  then,  in  his  own  defense,  and  for  safe- 
guard of  his  own  life,  killeth  the  other;  this  is  voluntary,  and 
vet  no  felony  ;  and  the  jury  that  finde  that  it  was  done  se  defend- 
iiulo,  ought  to  finde  the  spt'cial  mutter.  And  yet  such  a  precious 
regard  the  law  hath  of  the  life  <»f  man.  tliough  the  cause  be  inev- 
it;il»lc,  that,  at  the  common  law,  he  should  liave  suifered  death ; 
and,  though  the  statute  of  Gloucester  save  his  life,  yet  he  shall 
forfeit  all  his  goods  and  chattels.  *  *  ""  If  A  assault  IJ  so 
fiercely  and  violently,  and  in  such  manner  as  if  B  should  give 
hack,  he  should  be  in  danger  of  his  life,  he  may,  in  this  case, 
(k'tende  himselfe;  and  if,  in  that  defense,  he  killeth  A,  it  is  se 
di'fendendo^''  Ami  on  page  50,  speaking  of  the  same  subject,  he 
siys :  "Some,  without  giving  ba(^k  to  a  wall,  etc.,  or  other 
inevitable  cause,  as  if  a  thief  ofTv'n  to  rob  or  murder  B,  either 
ahroad  or  in  his  house,  and  thereupon  assault  hitn,  and  B  defende 
liiinself  without  giving  back,  and  in  his  defense  killeth  the  thief e, 
this  is  ii(»  felony;  for  a  man  shall  never  give  away  to  a  thiefe, 
etc.,  neither  shall  he  forfeit  anything." 

Sir  Matthew  Hale,  speaking  of  homicide  ex  necessitate  (1 
Hale's  Pleas  of  the  Ch'own,  chap.  40),  says  that  homicMde  in 
(leiViise  of  a  man's  own  life,  which  is  usually  styhnl  se  defend- 
endo^ \^  oi  twi>  kiiiiU:  "1.  Such,  as  though  it  excuse'th  from 
death,  yet  it  excusi'fh  not  \\\v  forfeiture  of  goods,  nor  is  the 
party  to  he  absolutclv  dischargiMl  fntni  prison,  but  hailed,  and  to 
purchasti  his  p:ii'don,  of  course.  2.  Such  as  wholly  a<'(piits  from 
all  kinds  of  forfeiture."  lie  delines  homicide  se  d<f<  i\dendo  to 
he  "the  killing  of  another  person  in  the  necessary  defense  of 
himself  against  him  that  assaults  him;"  and  states  the  rule  as 
follows:  "iJ.  Iveguhirly  it  is  necessary  tlitit  the  person  that  kills 
uiiotlier  in  his  own  (hifense  tly  as  far  as  he  may  to  avoid  the  vio- 
lence of  the  assault  before  he  turn  upon  his  iissailant;  for,  in 
cases  of  hostility  between  two  nations,  it  is  a  reproach  and  piece  of 
cowardice  to  Hy  from  an  enemy;  yet,  in  eases  of  aHsaults  and 
V(ii„  11  ^IT 


J              ! 

H 

! 

•! 

l\ 


. 


I 

"I 

m 


258 


AMERICAN  CRIMINAL  REPORTS. 


fit 
I 

'Is 


affrays  between  subjects,  under  the  same  law,  the  law  owns  not 
any  sucJi  point  of  honor,  because  the  king  and  liis  laws  are  to  be 
the  ly'indices  injuriarum,  and  private  persons  are  not  trusted  to 
take  eaiiltal  revenge  one  of  another." 

But  this  hath  some  exceptions : 

"  i.  In  respect  of  the  person  killing.  *  *  *  2.  In  respect 
to  the  person  killed.  If  a  thief  assaults  a  true  man,  either  abroad 
<->r  in  his  house,  to  rob  or  kill  him,  the  true  man  is  not  bound  to 
give  back,  but  may  kill  the  assailant,  and  it  is  not  felony." 

About  a  century  later  (17G2),  Mr.  Justice  Foster,  in  ids  admir- 
alde  discourse  on  the  law  of  homicide,  founded  in  necessity 
(Foster's  Crown  Cas(;s,  chap.  3,  p.  273,  et  seq.),  says :  "  Solf- 
(lefense  naturally  falletli  under  tlie  head  of  homicide  founded  in 
necessity,  and  may  be  considered  in  two  dilTerent  views.  It  is 
either  that  sort  of  homicide,  se  et  sua  (hfeiideixlo,  which  is  ])or- 
fectiy  innocent  and  justifiable,  or  that  ■>vhich  is  in  some  measure 
blamable  and  barely  excusable.  The  want  of  attending  to  this 
distiiiction  hath,  I  believe,  thrown  some  darkness  and  confusion 
\ipon  this  })art  of  the  law.  The  writers  on  the  crown  law,  who, 
I  think,  have  not  treated  the  subject  of  self-defejisu  with  (hic 
]>recision,  do  not  in  terms,  nuike  the  distinction  I  am  aiming  iit; 
yet  all  agree  that  there  are  cases  in  which  the  man  may.  without 
retreating,  o])pose  force  to  force,  even  to  the  death.  This  I  cmH 
justifiable  self-defense;  they  justifiable  honucide.  They,  like 
wise,  agree  that  there  are  cases  in  which  the  defendant  can  not 
avail  himself  of  the  plea  of  self-defense  without  showing  that  ho 
retreated  iis  far  as  he  could  with  safety,  and  then,  merely  for  tiii' 
preservation  of  his  own  life,  kilhid  the  assailant.  This  1  cull 
self-defense,  culj)al)le,  but,  through  the  beiugnity  of  the  liiw. 
excusable.  In  the  case  of  justifiable  self-defense,  the  injured 
party  may  repel  force  witli  force  in  defense  of  his  person, 
habitation  or  property,  against  one  who  manifestly  iiiteiideth  and 
cndeavoreth,  with  violence  or  surprise,  to  commit  a  known  felony 
on  either.  h\  these  cases  he  is  not  oliliged  to  retreat,  but  ni:iy 
jtursuo  Ids  adversary  till  he  findeth  himself  out  (tf  danger,  and  if, 
in  a  conflict  between  them,  he  ha|ipeneth  to  kill,  such  killing  is 
justifiable." 

In  1S()3,  Mr.  East  published  bis  excellent  Treatise  on  tlie  i'liace 
of  the  Crown,  and  on  page  271,  says,  in  speaking  of  honii<'ido 
from  necessity:  "Herein  may  be  considered  :  1.  What  sort  of 
attack  it  is  lawful  ami  iustiliable  to  resist,  even   by  the  death  of 


EinVIX  V.  STATE. 


259 


tlie  assailant,  and  wliere  the  party  is  without  blame.  2.  Where 
such  killing  is  only  excusable,  or  even  culpable,  and  the  party  is 
not  free  from  blame,"  etc.  In  relation  to  the  first  sort,  the 
author  says:  "  1.  A  man  may  repel  force  by  force,  in  defense  of 
liis  person,  habitation  or  property,  against  one  who  manifestly 
intends  and  endeavors,  by  violence  or  surprise,  to  commit  a 
known  felony,  such  as  murder,  rape,  robbery,  arson,  burglary  and 
tlie  like,  upon  either.  In  these  cases  he  is  not  obliged  to  retreat, 
hut  may  pursue  his  adversary  until  he  has  secured  himself  from 
all  danger ;  and,  if  he  k'dl  him  in  so  doing,  it  is  called  justifiable 
self-defense ;  as,  on  the  other  hand,  the  killing,  by  such  felon,  of 
any  person  so  lawfully  defending  himself,  will  be  murder.  But 
a  bare  fear  of  any  of  these  offenses,  however  well  grounded,  as 
that  another  lies  in  wait  to  take  away  the  party's  life,  unaccom- 
panied with  any  overt  act  indicative  of  such  an  intention,  will 
not  warrant  in  killing  that  other  by  way  of  prevention.  There 
must  be  an  actual  danger  at  the  time." 

In  this  connection  it  is  liardly  necessary  to  add,  much  less  to 
cite  authority  to  show,  that  a  homicide  whic^h  can  not  be  justified 
under  the  foregoing  rules,  can  not  be  excused  unless  the  slayer 
shows  that  before  the  mortal  blow  was  given  he  had  retreated  as 
far  as  he  safely  could,  ai  1  that  he  killed  his  adversary  solely 
from  the  necessity  which  then  existed,  in  order  to  save  himself 
from  immediate  death  or  enormous  bodily  harm. 

Shortly  after  the  publication  of  Mr.  East's  treatise,  the  case  of 
the  CotinnonwcaJth  v.  Selfrhjge^  a  leading  case  in  the  United 
States,  was  tried  in  the  Supreme  Judicial  Court  of  Massachusetts, 
in  the  year  1S<M).  The  charge  by  the  court  below,  as  above 
t'o])ii'(l,  was  a  substiintial  transcript  of  the  propositions  announc^ed 
by  .lustice  Parkci'  in  his  charge  to  the  jury  in  Selfridge's  case 
(Solfridge's  trial,  ItiO).  In  order  to  fully  understand  and  apply 
the  (iocti'iiie  of  Solfridge's  cusi-,  it  must  be  observed  that  Justice 
I'arkcr  ass\imed  in  bis  t-liarge  to  the  jury  that  Self  ridge  was  not 
free  from  blame  in  pn)vok!ng  the  a^.-^auit  from  Young  Austin, 
for  wliose  <}oath  he  was  upon  trial. 

The  deceased  had  takt-n  upon  In'mself  the  quarn^l  of  his  father, 
m'Ikiiii  the  defendant  bad  but  recently  jxxsted.  1  (piote  from  the 
charge:  "Who  was  originally  in  tin  wrong  it  is  not  for  me  to 
Kiy;  but  I  feel  constraintHl  to  say  that  wliat*vt^  pj-o/oeation  the 
(K'feinhiiit  may  have  conceived  to  have  been  given  him,  and  how- 
ever grnit  the  injury  thi' (K'cci.vrdV  tatlier  may  have  done  iiim, 


\\\ 


I 


lit" 


260 


AMERICAN  CHIMINAL  UKroUTS. 


If  ■ 


i    I 


he  certainly  proceeded  a  step  too  far  in  making  the  publication 
■which  came  oat  in  the  morning  of  this  unhappy  disaster.  To 
call  a  man  coward,  liar  and  scoundrel  in  the  public  newspapers, 
and  to  call  upon  other  printers  to  publish  the  same,  is  not  justifi- 
able unde  any  circumstances  whatever.  Such  publication  is 
libelous  in  its  very  nature,  as  it  necessarily  excites  to  revenge  and 
ill-l)lood." 

It  also  appears  in  the  case  that  Selfridge  anticipated  an  assiiult 
from  some  one  on  account  of  the  publication,  and  had  armed 
himself  with  a  pistol,  with  wliich  he  sbot  the  deceased  immedi- 
ately upon  being  assaulted  with  a  cane.  Such  being  tlie  case,  we 
do  not  understand  that  the  right  to  defend,  even  unto  deiith, 
without  retreating,  against  a  felonious  assault,  where  the  assaulted 
party  was  without  fault,  Wiis  intended  to  be  deni(!d  by  the  learned 
judge.  Indeed,  in  the  charge,  we  find  the  following:  "Numer- 
ous autliorities,  ancient  and  modern,  have  been  read  to  you  upon 
this  subject."  (Homicide  m  defend oxio,  both  justiiiable  and 
excusable.)  "Were  it  necessary  for  you  to  take  those  l)ook8  witli 
you.  and  compare  tlie  ditt'erent  principles  and  cases  whicli  have 
been  cited,  your  minds  miglit  meet  with  some  embarrassment, 
there  being  in  some  instances  an  ap[)arent,  ihough  in  none  a  real 
incongruity."  If  anything  further  Wiis  luioded  to  show  that  Jus- 
tice Parker,  in  his  charge,  intended  to  limit  the  duty  of  ''retreat- 
ing" to  cases  of  excusable  killing  in  self-defense,  and  did  not 
intend  to  extend  the  diity  to  (iases  of  justifiable  killing,  it  might 
be  implied  from  the  fact  that  in  the  previous  month  he  was  ju-es- 
ent  with  all  the  judg(!s  when  Chief  Justi(!e  I'arsons  cliarg(!d  tlie 
grand  jury  who  indicted  Self  ridge  as  fcdlows :  "  A  man  may  repel 
force  by  fon^',  in  defense  of  his  j)erson,  against  any  one  who 
nuinifestly  intends,  or  endctavors,  by  violence  or  su;'i)rise,  felnni- 
ourily  to  kill  him.  And  he  is  not  obliged  to  retreat,  but  may  ])nr- 
sue  his  adversary  until  he  has  secured  himself  from  all  danger; 
and  if  he  kill  him  in  so  doing,  it  is  justifiable  self-defense.  l!iit 
a  bar(!  fear,  however  W(dl  groumled,  unaccompanied  by  any  oveit 
act  indicative  of  such  intention,  will  not  warrant  him  in  killing. 
Then;  must  be  an  actiuil  danger  at  the  time.  And  (in  the  lan- 
guage of  Chief  Justice  Ilah;),  it  must  j)lainly  appear  by  the  cir 
oumstances  of  the  case,  as  the  manner  of  the  assault,  the  weapon, 
etc.,  that  his  life  was  in  imminent  danger,  otherwise  the  killing 
of  the,  assailant  will  not  be  justiliable  homicide.  Hut  if  the  party 
killing  had  reasonable  grounds  for  believing  that  the  person  slain 


I 


•  J  II        it 


ERWIN  >'.  STATK. 

liiifi  a  felonious  design  against  bim,  altliougli  it  sliould  afterward 
npiii'ar  that  there  was  no  such  design,  it  will  not  be  murder,  but 
will  he  either  manslaughter  or  excusable  homicide,  according  to 
tlie  degree  of  caution  and  the  probable  grounds  for  such  belief. 
Tlu'se  principles  have  been  recognized  by  the  wisest  and  ablest 
writers  on  criminal  law." 

T^y  olkserving  the  distinction  between  justifiable  and  excusable 
hm\\c\de  se  defendendo,  as  stated  in  the  authorities  above  quoted, 
iriiich  of  the  discrepancy'  in  the  decisions  of  the  courts  where  the 
<(iinmon  law  prevails  is  made  to  disappear,  most  of  the  cases 
upon  the  facts  being  such  as  would  only  excuse  the  killing. 

It  is  true,  under  our  constitution,  whether  the  killing  in  self- 
del'ense  be  justifiable  or  excusable,  there  must  be  an  entire 
aequittiil,  for  the  reason  that  there  is  no  forfeiture  of  goods  iu 
cases  of  excusable  homicide.  But  this  is  no  reason  why  the  dif- 
ference l)(!tween  the  cases,  as  to  the  duty  of  retreating  to  the 
vail,  should  be  ignored.  Tlie  taking  away  of  the  forfeiture,  :,n 
oiises  of  excusable  homicide,  did  not  relieve  the  party  in  such 
case  from  the  duty  of  retreating,  nor  did  it  inipose  such  duty  in 
cases  where  it  was  not  before  required. 

It  is  true  that  all  authorities  agree  that  the  taking  of  life  in 
defense  of  one's  person  can  not  be  either  justified  or  excused, 
except  on  the  ground  of  necessity  ;  and  that  such  necessity  must 
1)0  imnu'nent  at  the  time ;  aiul  they  also  agree  that  no  man  can 
avail  himself  of  such  necessity  if  he  brings  it  upon  himself.  The 
question,  then,  is  simply  this:  Does  the  law  hold  a  man,  who 
is  violently  and  feloniously  assaulted,  resi)onsible  for  having 
bronght  such  necessity  upon  himself,  on  the  sole  ground  that 
lie  failed  to  fiy  from  his  assailant  when  he  might  have  safely  done 
PD?  The  law,  (»ut  of  tend(M'iies,s  for  human  life,  and  the  frailties 
of  human  nature,  will  not  permit  the  taking  of  it  to  repel  a  mere 
trespass,  or  t'ven  to  siive  life,  where  the  assault  is  provoked;  but 
a  true  man,  who  is  without  fault,  is  not  obliged  to  fly  from  an 
assailant,  who.  by  violeneci  or  surprise,  maliciously  seeks  to  take 
liis  life  or  do  him  enormous  bodily  harm. 

Ts'^ow,  niuler  the  charge  below,  notwithstanding  the  defendant 
may  have  Iummi  without  fault,  and  so  assaulted,  with  the  necessity 
of  takinir  life  to  s.ive  his  own  upon  him,  still,  the  jury  could  not 
have  acijuitted,  if  they  found  he  had  failed  to  do  all  in  his  power 
<itherwise  to  save  his  own  life  or  prevent  the  intended  barm,  as 


I 


f 

If'* 


mi 


AMERICAN  CIJDIINAL  REPORTS. 


retreatinj^  an  fur  as  he  could,  etc.  lu  this,  we  think,  the  law  was 
not  correctly  stated. 

Tlie  sug<ijestion  by  the  attorney-<^eneral,  that  that  rule  should 
be  declared  the  law  which  is  best  calculated  to  protect  and  pre- 
Berve  human  life,  is  of  great  weight,  and,  we  can  safely  say,  that 
the  rule  announced  is,  at  least,  the  surest  to  prevent  the  occur- 
rence of  occasions  for  taking  life;  and  this,  by  letting  the  would- 
be  robber,  murderer,  ravisher,  and  such  like,  know  that  their 
lives  are,  in  a  measure,  in  the  hands  of  their  intended  victims. 

Of  course,  there  is  nothing  in  this  opinion  which  will  be 
understood  as  withdrawing  from  the  jury  the  determination  of 
every  question  of  fact  involved  in  an  issue  of  se  defcndendo. 
Whether,  under  the  law  as  here  laid  down,  and  such  other  rules 
as  may  be  applicable  to  any  particular  case,  a  necessity  existed  at 
the  time  to  take  life  in  order  to  save  life  or  prevent  enormous 
bodily  harm,  as  well  as  the  question,  whether  the  killing,  under 
the  circumstances  of  each  case,  was  prompted  solely  by  such 
necessity,  or  by  other  motives,  is  to  be  determined  by  the  jury  in 
such  case. 

Judgment  reversed,  and  cause  remanded  for  further  pro- 
ceedings. 

NoTK. — On  the  question,  as  to  what  opinion  shall  be  sufRcient  to  render  a 
])erson  an  incompetent  juror  on  llie  trial  of  a  criminal  case,  the  authorities  are 
Btill  greatly  divided.  In  Pennsylvania  (Wn/y;  c.  Cii)n.,lA  Pa.  St. ,  4.")H)ilu!  rule  is 
laid  down  in  these  words:  "  Whenever  the  opinion  of  the  juror  lias  heeii 
formed  iipon  the  cviden<'e  ;j;iven  on  the  trial  at  a  former  time,  or  has  l)e(in  so 
deliberat(!ly  entertained  that  it  has  become  a  tixcd  belief  of  the  prisoner's 
guilt,  it  would  be  wrong  to  receive  liiiu.  In  such  a  case  the  bias  must  be  too 
strong  to  be  easily  shaken  off,  and  the  prisoner  ought  not  to  be  subjected  to 
the  chances  of  conviction  it  nee('s-:;(rily  begets. 

H>it  where  the  opinions  or  impressions  of  the  juror  are  foimded  on  runiDn 
or  reports,  or  even  newspa|)er  sliilemenls,  which  tin;  juror  feels  conscious  he 
can  dismiss;  where  he  has  no  li.ved  beii(^f  or  prejudice,  and  is  able  to  .say  he 
can  fairly  try  the  prisoiH.'r  on  the  evidence,  freed  liom  tlic  influence  of  such 
opinions  or  impressions,  be  ought  not  to  bcM-xclmled."  The  ch-ar  weight  of 
authority  supports  the  doctrine  as  l.iid  down  in  this  case.  For  various  eases 
in  which  this  o|union  has  \\vvn  applied  to  particular  facts,  see  75  Pa.  St.,  424; 
7(i  Pa.  St.,  414;  7!»Pa.  St.,  ;(0H. 

Tlie  New  York  stiilute.  which  provides  in  sulistiince  lliat  an  opinion  or 
impressioa  as  to  the  circumstances,  or  as  to  \\w  .guilt  or  innocence  of  llic  jiri- 
oner,  shall  not  b(!  a  sullieient  groinid  for  challenge  for  principal  cause,  pro- 
vided that  the  jiu'or  dec'lares  on  oath  that  he  can  ri'iider  an  impartial  veniiei, 
and  i)rf)viili!d  the  court  be  satisfied  that  he  does  not  entertain  such  a  present 
opinion  as  would  inlluence  his  verdict,  do(!s  not  infringe  upon  the  right  to  ;iu 
impartial  jury,  and  is  constitutional:    Shken  v.  People,  ').]  N.  Y.,  104. 


was 


pro- 


KKi:  /•.  s'l'.v'ii:. 


2fi3 


In  Kansas  a  (lisfinotion  ia  drawn  hctwocn  an  opinion  and  iin  impression,  and 
fi  jiiior  who  had  r(!ceived  an  impression  from  rcudiiitr  newspaper  statements, 
iin<!  whose  impression  was  not  positive  or  fixed,  l)iii  deix'inlent  upon  the  truth 
or  falsity  of  tlie  newspai)er  aceounls,  notwitlisliuidinglie  niiirlil  iiave  expresijed 
an  opinion,  was  iicUl  eomi)eleut:    Stale  r.  Miitlkult,  i)  Kan.,  257. 

In  Alahama  the  courts  j?o  very  far  in  re(;eivinf;  as  jurors  persons  who  have 
formed  opinions,  and,  conlrary  to  the  usual  rule,  it  seems  that  any  juror  i.s 
eonipet(!nt  if  lie  is-willinjf  to  swear  that  his  opinion  is  not  fixed,  that  it  can  be 
changed  by  evidence,  and  that  it  will  not  bias  his  verdict:  C'timon  v.  State, 
r)0\h.,  134. 

The  following  cases  maybe  cited  in  support  of  the  general  doctrine  laid 
down  in  the  Pennsylvania  case  cited,  that  an  opinion  to  discpialify  nuist  ho  of 
11  ti.M'd  and  positive  character:  Andermn  v.  State,  14  (Ja. ,  70!);  Wn'r/ht  e.  Slate, 
IH  (Ja.,  '>i^'i;  State  v.  Fox,  25  N.  J.  L.  (1  Dutch.),  oOO;  Slate  v.  Ilinkle,  0  Iowa, 
;(80;  Baxter  r  People,  8  111.  (3  Gilm.),  308;  Slate  v.  Sater,  8  Iowa,  420;  Slate  v. 
liriiWH,  4  La.  Ami.,  505;  State  v.  Daiin,  29  Mo.,  ilOl ;  Stale  v.  liJIIiiif/lon,  7 
Ircd.  (N.  C),  L.,  «1;  Com.  v.  WeAifer,  5  Cush.  (Mass.),  205;  Holt  i\  People,  i:{ 
Mich.,  224;  O'Connor  v.  Slate,  9  Fla.,  215;  Fahnextoekv.  State,  23  Ind.,  231. 

The  following  are  some  of  the  latest  cases  upon  the  general  question: 
I'lvple  V.  Weil,  40  C'al.,  2(18,  where  a  juror  who  had  formeil  a  fixed,  det;idi'(l 
opinion,  was  held  ineompetcnt,  notwithstanding  he  stated  on  cross-examina- 
tion tlnit  his  opinion  was  not  an  un(pialified  one,  and  tliat  lie  could  try  the 
OiiBC  upon  the  evidence,  without  reijard  to  liis  previous  ofiinions. 

See,  also.  People  i\  Jirown,  48  Cal.,  253;  J'rople  i\  Jo/iiinoii,  40  Cal.,  78. 

But  tliere  are  authorities  whicli  draw  the  line  inueli  more  cio.scly.  The 
Mississippi  act,  relating  to  tln^  (lualifieations  of  jurors  in  criminal  cases,  is 
cnnsldcrcd  of  doulilful  constitutionality,  and  the  rule  in  that  state  re(]uires  the 
rejection  of  juror  who  has  any  opinion  which  it  would  recpiin!  evidence  to 
remove,  wnatevei'  that  opinion  may  have  been  foiuided  on.  And  altliough 
llie  juror  may  claim  to  be  unbiased,  and  able  lo  render  an  impartial  vt'rdict, 
lie  Is  -llll  incompetent  (hif/an  i\  Slate,  .5U  Miss.,  2<i9);  iuid  in  Vermont,  a 
juror  who  iiad  e.vpressed  an  opinion  as  to  tiie  guilt  of  tiie  |)ris()!U!r,  on  reading 
a  newspaper  ace((unt  of  the  examination  before  a  mngistrate,  a  few  weeks 
liefore.  i)Ut  wlio  said  that  h(^  liad  no  opinion,  and  liail  formed  none,  and  could 
iry  Die  ease  impiuiially  on  liie  (ividenee,  was  iieid  dls(jualiHed:  State  v. 
Clark,  42  \'t.,  02!».  'rending  in  llie  same  direellon  are  Black  o.  State,  43 
Texa.s,  378;  Carroll  o.  State,  5  Neb.,  1 ;  .faekmii  v.  Cum.,  23  Gratt.  (Va.),  919. 


Kkk  v.  Statu. 

(28  Ark.,   155.) 

lIOMicfDE  :  Correct  charge  as  to  death  from  improper  treatment  of  injury  — 
Evidence  as  lo  good  character  —  Drinking  spirituous  liquors  by  jurors  — 
Separation  of  the  jury. 

In  a  case  where  some  of  the  evidence  tended  to  show  that  the  wound  inflicted 
by  the  respondent  upon  the  deceased  was  not  necessarily  fatal,  but  thai, 
by  neglect  of  tlie  directions  of  tlic  physician  in  char.LC  maggots  got  into 
Ww  wound,  causing  inflammation  of  tlii'  bowels,  from  wiiich  the  wouiuied 
person  died.     A  reipiest  to  charge  that  "  if  the  jury  Hnd  tlial  llie  wound 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


11.25 


1^121    12.5 
itt  122   12.2 

!£   |4£    12.0 

■lUU 


PhotDgraphic 

Sciences 

Corporation 


13  WIST  MAIN  STRUT 
WiUTIR.N.Y.  MSiO 

(7U)  172-4503 


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t 


■\ 


t  I 


i  M  i 

i 

AMERICAN  CUIMINAL  KEl'ORTS. 


inflicted  by  tlic  defendant  was  not  of  itself  mortal,  but  throuph  negligence 
or  the  want  of  proper  treatment  became  so  and  terminated  fatally,  ntul 
that  neglect  or  want  of  proper  treatment  was  the  immediate  cause  of  the 
death  of  the  deceased,  and  not  the  wound  itself,  they  must  acquit  the 
defendant,"  waa  held  properly  refused. 

In  such  a  case,  it  is  proper  to  charge  the  jury  that  "  if  the  jury  believe,  from 
the  evidence,  that  the  deceased,  within  the  space  of  a  year  and  a  day 
from  the  infliction  of  the  wound,  died  from  some  disease  or  disorder  pro- 
duced by  said  wound,  inflicted  by  the  voluntary  act  of  the  defendant, 
when  not  in  danger  of  life  or  limb  from  the  deceased,  then  they  will  find 
the  defendant  guilty  as  charged." 

HM,  that  there  was  no  error  in  rlvirging  that  "if  the  jury  believe,  from  the 
evidence,  that  the  defendant  willfully  and  unlawfully  inflicted  upon 
the  deceased  a  mortal  or  dangerous  wound,  and  from  that  wound  and 
other  aggravating  causes,  operating  upon  or  caused  by  said  wound,  the 
deceased  died,  they  siioidd  find  the  defendant  guilty,  and  the  defendant 
cannot,  under  tiie  law.  slidier  himself  by  a  plea  of  erroneous  treatment 
of  the  deceased,  either  from  his  physicians  or  nurses.'' 

A  person  on  trial  for  crime  lias,  in  all  cases,  a  right  to  give  in  his  defense 
evidence  of  his  good  character  as  to  the  particular  traits  involved  in  the 
matter  on  trial,  and  there  is  no  case  so  clear  in  which  it  is  not  error  to 
reject  such  evidence. 

The  fact  that  the  jury,  pending  the  trial,  were  taken  by  the  sherifF  into  a 
saloon,  and  treated  by  him  to  a  drink  of  spirituous  liquor,  is  not  of  itself 
sulHcient  ground  for  setting  aside  the  verdict. 

That  while  taking  refreshments  nt  a  hotel,  pending  the  trial,  two  of  the  jury 
being  colored  men,  ate  in  a  different  room  from  the  others,  is  not  ground 
for  a  new  trial. 


w 


Seari.e,  J.  Tl;e  appellant  was  tried  upon  an  indictment  for 
the  nnirdor  of  one  Ltiiiijlcy,  in  the  Woodrnft'  circuit  court,  at  the 
September  term  thereof,  IS7'2.  The  jury  found  him  guilty  of 
murder  hi  the  second  degree,  and  he  was  sentenced  to  eleven 
years  of  hard  labor  in  the  state  penitentiary. 

la  the  progress  of  the  trial,  divers  exceptions  were  taken  to 
the  rulings  of  the  court,  upon  evitlcnce  olfcred  and  upon  instruc- 
tions given  to  the  jury  as  to  the  law  of  the  case,  all  of  which, 
after  the  verdict,  wore  brought  forward  in  a  motion  for  a  new 
trial.  The  motion  for  a  new  trial  was  overruled,  to  which  appel- 
lant excepted,  and  Hied  his  bill  of  excerptions,  setting  out  all  the 
evidence,  the  instructions  given  and  refused  by  the  court,  and 
various  other  matters  assigned  as  errors,  and  appealed  to  this 
court.  The  errors  assigned  as  the  foundation  for  a  motion  for  a 
new  trial,  are  substiuitially  as  follows: 

1.  That  the  verdict  of  the  jury  was  contrary  to  tho  law  and 
the  evidence. 


KEE  V.  STATE. 


265 


2.  That  the  court  erroneously  gave  the  instructions  asked  to 
be  given  by  the  state,  and  refused  to  give  those  asked  by  the 
appellant. 

3.  That  the  court  rejected  legal  and  material  testimony  offered 
by  the  appellant 

4.  That  the  jury  were  permitted  to  go  to  a  drinking  saloon, 
and  drank  spirituous  li(|uor8  during  their  deliberations. 

5.  That  the  jury  were  permitted  to  separate  during  the  trial. 
The  correctness  of  the  verdict  of  the  jury,  and  also  of  the 

instn^ctions  of  the  court,  by  which  the  jury  were  directed  to  the 
verdict  in  the  trial  of  the  cause  below,  rests,  in  a  great  measure, 
if  not  entirely,  upon  the  testimony  which  was  before  the  jury. 
It  is  necessary,  therefore,  to  look  first  to  the  testimony. 

The  wound  which  was  received  by  the  deceased  was  inflicted 
b'  the  appellant  on  the  27th  day  of  July,  1872,  and  death  ensued 
on  tlie  2d  day  of  September,  1872. 

Miller,  witness  for  the  prosecution,  testified  as  follows :  Ho 
was  acquainted  with  the  deceased  and  the  prisoner ;  was  in 
Augusta  on  the  27th  day  of  July,  1872,  and  saw  both  Kee  and 
Lingley  the  evening  of  that  day.  He,  with  Langley  and  others. 
was  in  Gordon's  store,  when  Kee,  with  one  White,  catne  in. 
Kee  asked  Langley  to  walk  into  the  back  room  with  him,  where- 
upon deceased,  Kee  and  White  went  into  the  back  room.  After 
Bome  little  time  he  (witness)  heard  quarreling  between  the  pris- 
oner and  deceased  in  the  back  room ;  heard  the  d — d  He  given  : 
did  not  know  who  gave  it.  He  then  went  into  the  back  room 
and  saw  the  prisoner  draw  from  his  pocket  an  open  pocket-knife, 
with  which  he  struck  deceased.  Deceased  returning  the  blow, 
the  prihoner  struck  him  again.  Before  the  prisoner  struck  tlie 
deceawul,  the  latter  stepped  back  two  paces.  After  the  prisoner 
Btruck  deceased  the  second  time,  T.  B.  Gordon  and  John  Tlodges 
came  in  aiul  sepuratod  the  parties.  Tlio  wound  which  tlu*  pris- 
oner inllicted  Jipon  the  deceased,  was  upon  his  left  side.  Deceased 
told  the  pris(»m'r  that  he  was  unwilling  to  fight,  as  he  had  been 
chilling  for  twcdve  montlis.  Gordon  and  llodges  testified,  sub- 
Btantially  the  siinie  as  Miller.  White  testified  as  follows  :  Uc 
Piiw  prisoner  and  deceased  on  the  2Ttli  <»f  'Inly.  IS7iJ,  first  in 
I'lice's  drinking  saloon  ;  some  words  passed  between  them  there ; 
(l(ceaHed  was  rough,  and  used  insulting  language  toward  the 
jirisoiier.  He  (witiu'ss)  hd't  the  saloon  with  the  prisoner.  Sonu» 
time  after,  with  the  prisoner,  he  went  to  (Gordon's  store.     While 


1 

.  1 

■'■     ! 
I'             1.4 

•'       }  ' 

'3> 


2r>6 


AMERICAN  CRIMINAL  REPORTS. 


there,  tlie  deceased  came  up  and  remarked  to  tlie  ))ris(»ner,  "  T 
want  to  see  yon."  Prisoner  replied,  "  I  don't  want  any  fuss 
with  you,  and  if  I  l\ave  insuhed  yon,  I  am  williii<;'  to  muko 
apologies."  Prisoner,  deceased  and  witness  tlien  went  into  tlie 
back  room  of  Gordon's  store.  Prisonei*  said  to  deceased,  '•  Wo 
are  both  drnnk,  let  us  go  homo,  get  sober  and  then  meet  on  half- 
way ground  and  settle  it."  Deceased  replied,  "  No,  here  is  as 
good  a  place  as  any  to  settle  it."  After  some  more  quarreling', 
deceased  called  the  prisoner  a  d — d  liar,  and  struck  him.  Prisoner 
then  strr.ck  deceased.  He  (witness)  saw  no  knife  in  prisoiier's 
hand,  but  saw  deceased  pass  his  hand  to  his  side  and  there  saw 
blood. 

Dr.  Echols  testified  as  follows :  He  was  a  practicing  physician 
in  the  town  of  Augusta.  On  the  27th  of  'Tuly,  1872,  deceased 
was  brought  to  his  office  for  treatment.  On  examination,  he 
found  that  the  deceased  was  wounded  on  the  left  side,  across  the 
seventh  and  eighth  ribs.  The  woi:nd  was  about  six  inches  long 
and  half  an  inch  deep,  and  perforated  the  intercostal  nniscle  in 
two  places.  He  did  not  consider  the  wound  mortal,  lie,  with 
the  assistance  of  Dr.  Brnnson,  dressed  the  wound.  The  patient 
remained  in  town  two  days,  and  then,  contrary  to  his  advice,  was 
removed  to  Maj.  Dent's  plantation,  about  seven  miles  from 
.Vngusta,  in  a  common  road  wagon.  The  deceased  remained 
nnd(!r  his  professional  charge  from  the  time  of  the  reception  of 
the  wound  until  his  death.  The  wound  commenced  healing  on 
Hrst  intention,  and  symptoms  were  favorable  for  the  first  four- 
teen days.  He  ordered  the  wound  to  l)e  kept  covered  with  a 
cloth  saturated  with  a  carbolic  acid  wash.  Tn  his  (witness's) 
opinion,  his  instructions  were  not  ])ro})erly  observed,  as  on  or 
about  the  Hth  of  August,  on  examination  of  the  wound,  he 
discovered  maggots  in  it,  and,  in  his  opinion,  if  his  instructionii 
had  been  followed,  it  would  have  been  impossible  for  maggots  to 
have  got  into  the  wound.  The  presence  of  the  maggots  caused 
infiammation  of  the  bowels,  from  or  (»n  account  of  which  intlaiii- 
tnation  the  patient  died.  Dr.  Hrunson,  who  assisted  in  dressing 
the  wound,  stated,  that  in  his  opinion  the  wound  was  not  neces- 
sai-ily  fatal. 

Maj.  Dent,  to  whose  liouse  deceased  was  removed,  testified 
tlmt  the  deceased  was  as  well  cared  for  as  jxissible,  under  the  cir- 
cumstances, it  biMiig  August,  and  the  weather  being  very  hot. 
Pope,  an  attendant  upon  the  deceased,  testified  that  lie  followed 


; 


fllss 

the 

lalf- 

IH  :i8 


•".;', 


KEE  V.  STATE. 


267 


the  directions  of  the  physician,  Dr.  Echols,  to  the  best  of  his 
ability. 

Upon  this  evidence  the  appellant's  counsel  asked  the  following 
instructions:  "If  the  jury  find  that  the  \vo\xnd  inflicted  by  the 
defendant,  on  the  deceased,  was  not  of  itself  mortal,  but  through 
negligence  or  the  want  of  proper  treatment  became  so  and  termi- 
nated fatally,  and  that  neglect  or  want  of  proper  treatment  was 
the  immediate  cause  of  the  death  of  the  deceased,  and  not  the 
wound  itself,  they  must  acquit  the  defendant,"  which  was 
refused,  and  in  lieu  thereof  the  following  instructions,  asked  by 
the  state  counsel,  were  given :  "  If  the  jury  believe  from  the 
evidence  that  Langley,  within  the  space  of  a  year  and  a  day  from 
tiic  infliction  of  the  wovnd,  died  from  some  disease  or  disorder 
produced  by  said  wound,  inflicted  by  the  voluntary  act  of  the 
defeiuhujt,  when  not  in  danger  of  life  or  limb  from  Langley, 
then  they  will  find  the  defendant  guilty  as  charged. 

"If  the  jury  believe  from  the  evidence  that  the  defendant 
willfully  and  unlawfully  inflicted  upon  Langley  a  mortal  or 
dangerous  wound,  and  from  that  wound  and  other  aggravating 
causes,  oiKTiting  upon  or  caused  by  said  wound,  Langley  died, 
they  should  find  the  defendant  guilty ;  and  the  defendant  cannot, 
under  the  law,  shelter  himself  by  a  plea  of  erroneous  treatment 
(if  said  Langley,  either  from  his  physicians  or  his  nurses ; "  and 
to  the  refusal  to  give  the  first  and  to  the  giving  of  the  last  two 
instructions,  the  appellant  excepted. 

It  is  contended  by  the  ap})ollant's  counsel  that  the  deceased 
eanie  to  his  (U-ath  by  inflammation  of  the  bowels  ;  that  the  death 
liad  MO  relation  to  the  wound,  "•except  that  of  sequence"  (as  to 
time,  we  presume,  they  mean),  and  that  the  inflammation  which 
caused  the  death  was  not  the  elfect  of  the  wound  either,  bnt  of 
the  iiiaiigots,  and  that  the  maggots  were  not  the  effect  of  the 
wound,  but  of  the  negligence  on  the  part  of  the  nurses,  in  not 
oliejing  the  instructions  of  the  physicians.  They  insist,  there- 
Fort',  that  the  death  had  lU)  eonnection  with  the  wound  as  the 
elfect  thereof,  mediately  or  immediately.  They  consequently 
argue  that  the  verdict  of  the  jury  was  without  evidence  to  sup- 
port it,  as  to  the  fact  that  the  wound  was  the  mediate  or  imme- 
diate cause  of  the  death,  which  fact  the  jury  must  have  found  m 
the  foundation  of  their  verdict;  an<l  that  the  instructions  of  the 
court  upon  the  state  of  facts  presented   by  the  testimony  were 


W  :  I 


268 


AMERICAN  CRIMINAL  REPORTS. 


-?/ 


fi 


!^i 


erroneous,  and  tended  to  misdirect  the  jury  to  their  erroneous 
finding  and  verdict. 

Tlie  following  are,  we  think,  the  correct  rules  or  doctrines  in 
relation  to  the  questions  presented  by  the  exceptions  which  we 
are  considering.  The  evidence  must  connect  the  death  with  t\Q 
blow  charged :  Wharton's  American  Criminal  liaw,  10o4. 
"  The  general  rule  (to  use  the  language  of  Mr.  Bishop  in  his 
Treatise  on  Criminal  Law),  both  of  law  and  reason,  is  that  when- 
ever a  man  contributes  to  a  particular  result,  brought  about, 
either  by  sole  volition  of  another,  or  by  such  volition,  added  to 
his  own,  he  is  to  be  held  responsible  for  the  result,  the  sauio  iw 
if  his  own  unaided  hand  had  produced  it.  The  contribution, 
however,  must  be  of  such  magnitude  and  so  near  the  result  that, 
sustaining  to  it  the  relation  of  cause  and  effect,  the  law  takes  it 
within  its  cognizance.  Now,  these  propositions  conduct  us  to 
the  doctrine  that,  whenever  u  blow  is  inflicted  under  circiuii- 
stances  to  render  the  party  inflicting  it  criminally  responsible, 
if  death  follows,  lie  will  be  holden  for  murder  or  manslaughter, 
thougli  the  jK'rson  beaten  would  have  died  from  other  causes,  or 
would  not  have  died  from  this  one,  had  not  others  operated  with 
it ;  provided,  that  the  blow  really  contributed  mediately  or 
immediately  to  the  death,  as  it  actually  took  place,  in  a  degree 
sufticient  for  the  law's  notice :"  Bishop  on  Criminal  Law,  sec- 
tion r>53.  See,  also,  2  "Wliart,  Am.  Crini.  Law,  section  9-il. 
This,  we  think,  is  the  correct  doctrine,  expressed  in  very  general 
terms,  as  gathered  from  nun  "ous  cases  cited  by  Mr.  liishop  and 
Mr.  Wharton. 

It  is  said  in  I?e,e  v.  liew,  I.  Kel.,  26,  "  That  Edward  Hew  Wius 
indicted  for  killing  Nathaniel  Rew,  his  brother,  and  upon  tlm 
evidence,  it  was  resolved  that,  if  one  gives  wounds  to  anotlier 
who  neglects  to  ciire  them,  or  is  disorderly  and  does  not  keep 
that  rule,  which  a  person  wounded  should  do,  yet  if  he  d'w, 
it  is  murder  or  manslaughter,  according  as  the  ease  is,  *  * 
*  *  because,  if  the  woimd  had  not  been,  the  man  had  not 
died;  and,  therefore,  neglect  or  disorder  in  the  person  who 
receives  the  wounds  shall  not  excuse  the  person  who  gave 
them."  And  Lord  TLile  says:  "If  a  man  receives  a  wound 
which  is  not  in  itself  mortal,  but  either  for  want  of  lielpful 
appliances  or  neglect  thereof,  it  turns  to  a  gangrene  or  fever,  and 
the  gangrene  or  fever  be  the  imm"diate  cause  of  his  death,  yet 
this  is  murder  or  manslaughter  in  him  that  gave  the  stroke  or 


KEE  V.  STATE. 


269 


wound ;  for  the  wound,  though  it  were  not  the  immediate  cause 
of  liis  death,  yet  it  were  the  mediate  cause  thereof,  and  the  fever 
or  gangrene  were  the  immediate  cause  of  his  death,  yet  the 
wound  was  the  cause  of  the  gangrene  or  fever,  and  so,  conse- 
quontlj,  is  causa  cnii,sati:  1  Hale's  PL  C,  428.  See,  also, 
t'otn.  V.  Jlaohett,  2  Allen  (Mass.),  136;  The  State  v.  Scott,  12 
La.  (An.),  274;  and  McAllistyr  v.  The  State,  17  Ala.,  439.  In 
tlie  latter  case,  Dargen,  C.  J.,  speaking  for  the  court,  said :  "  If 
the  death  be  owing  truly  to  the  wound,  it  signifies  not  that  the 
deceased  would  have  recovered  under  more  favorable  circum- 
stances or  with  more  prudent  care  ;  the  death  being  the  result  of 
the  wound,  the  party  inflicting  it  must  be  held  responsible  for 
it."  But,  on  the  other  hand,  it  has  been  said,  "  If  the  wound  or 
hnrt  be  not  mortal,  but  with  ill  appliances  of  the  party  or  those 
about  him,  of  unwholesome  salve  or  medicines,  the  party  dies,  if 
it  clearly  appear  that  this  medicine,  and  not  the  wound,  was  the 
cause  of  iiis  death,  it  seems  it  is  not  homicide  (murder  or  man- 
slaughterj ;  but  then  that  must  appear  clearly  and  certainly  not 
to  l)e  so :"  1  Hale's  PI.  C,  428.  Likewise,  by  more  recent 
autliorities,  that  "  when  the  wound  was  not  of  itself  mortal,  the 
party  died  solely  of  the  improper  treatment  and  not  at  all  of  the 
wound,  the  result  is  otherwise,"  that  is,  murder  or  manslaughter 
has  not  been  committed :  3  Greenl.  Ev.,  section  139  ;  Rex  v. 
€o7mor,  2  Car.  &  K.,  518  ;  Parsons  v.  The  State,  21  Ala.,  300. 
But  Mr.  Bishop  says  that  this  doctrine  "  is  practically  danger- 
ous ;  because  in  law,  if  the  person  dies  by  the  action  of  the  wound, 
and  by  the  rnedical  or  surgical  action  jointly,  the  wound  must 
clearly  be  regarded  sufficiently  a  cause  of  the  death.  And  the 
wound  need  not  even  be  a  concurrent  cause,  much  loss  need  it  be 
the  next  proximate  one;  for  it  is  the  cause  of  the  cause  ;  no  more 
18  recpiired  :"  2  Bish.  Crim.  Law,  section  654  ;  see,  also.  Com.  v. 
McPike,  3  Cnsh.,  181 ;  Rex  v.  Minnock,  1  Crawf.  and  Dix.  C. 
C,  45.  The  doctrine  as  enunciated  and  illustrated  by  the  author- 
ities above  quoted  and  cited,  has  its  foundation  in  a  wise  and 
Bound  policy,  and  to  uphold  the  reverse  of  it,  or  any  other,  would 
be  to  establish  a  most  dangerous  precedent,  and  one  which  would 
work  the  acquittal  of  tiio  offender  in  every  case  where  the  wound 
superinduced  other  disease  of  which  the  victim  died.  In  the 
(«i8e  under  consideration,  so  far  as  the  wounding  of  the  deceased, 
Lis  treatment  by  removal  from  .\ni:usta  to  Dent's  plantation, 
aud  tlie  nature  of  the  wound  are  concerned,  the  evidence  is  con- 


■h!-^ 


270 


AMERICAN  CRIMINAL  REPORTS. 


wm 


mm 


flicting ;  as  to  the  treatment  of  the  wound  the  evidence  is  con- 
flicting; the  physician  testifying  that  his  directions  were  not 
followed  by  the  nurses,  and  the  nurses  testifying  to  the  contrary. 
But  we  apprehend  that  this  has  but  little  to  do  with  the  law  of 
the  case  ;  it  was  a  matter  which  was  exclusively  within  the  pro- 
vince of  the  jury  to  consider  and  determine.  By  a  process  of 
very  refined  reasoning,  the  appellant's  counsel  endeavored  to 
show  that  there  was  no  such  relation  betM'cen  the  death  of  the 
deceased  and  the  wound  by  which  it  could  be  predicated  that  the 
furmer  was  in  any  sense  the  effect  of  the  latter,  or  in  other  words, 
tliat  the  wound  was  the  cause  of  the  death,  either  immediately 
or  mediately.  We  are  free  to  confess  that  we  cannot  see  the 
force  of  this  reasoning. 

Grant  tliat  the  wound  "  was  not  necessarily  fatal,"  as  testified 
to  by  Dr.  Bronson  ;  grant  also  that  the  nurses  were  negligent  in 
their  care  of  the  deceased,  and  that  the  maggots  would  not  have 
appeared  had  the  physician's  instructions  been  observed,  still  it 
cannot  be  doubted  that  the  wound  was  the  efficient  cause  of  the 
maggots,  and  the  negligence  of  the  nurses  waa  merely  the  occa- 
sion of  their  appearance.  Nor  can  it  be  doubted  that  the  wound 
itself,  and  the  maggots  thus  caused  and  occasioned,  were  con- 
jointly the  eflicient  causes  of  the  inflammation  which  resulted  in 
death.  This,  then,  clearly  comes  within  the  doctrine  laid  down 
by  Mr.  Bishop  and  supported  by  Lord  Hale,  and  nearly  all  the 
authorities,  that  the  wound  need  not  even  be  a  concurrent  cause, 
nmch  less  need  it  be  the  next  proximate  one ;  for  it  to  be  causa 
oausati,  no  more  is  required  to  constitute  the  offense. 

The  fact,  then,  that  the  deceased  was  removed  in  a  rough 
manner,  and  that  the  nurses  failed  or  neglected  to  carry  out  tiie 
instructions  of  the  physician  (if  this  were  true),  and  which  may 
have  aggravated  the  wound,  ought  not  to  mitigate  the  crime  of 
the  appellant,  whose  ma^'ce  in  the  infliction  of  the  wound  caused 
the  death.  To  do  that,  it  must  plainly  appear  that  the  death  was 
caused  neither  immediately  nor  mediately  by  the  wo\ind,  but 
only  and  entirely  by  the  improper  treatment  from  persons  other 
than  the  appellant.  The  position  assumed  by  the  counsel, 
namely,  that  the  state  adduced  no  testimony  to  show  that  in  point 
of  fact  the  deceased  died  from  the  effect  of  the  wound  immedi- 
ately or  mediately,  is  untenable.  The  state  proved  that  the 
appellant  cut  deceased,  that  the  inflammation  resulted  from  the 
wound  inflicted  (occasioned  by  improper  treatment,  it  may  bo, 


KKE  V.  STATE. 


271 


hut  tliis  is  iimiiiiterial),  and  from  whicli  deceased  died.  By  the 
]i<'lit  of  the  al)Oveant1iorities  and  in  view  of  the  facts  of  the  case, 
we  are  of  opinion  tliat  the  court  did  not  err  in  relation  to  the 
iibove  instructions.  The  jury  M'cre  tlie  sole  judge  of  the  facts, 
and  their  verdict  is  in  accordance  with  the  weiglit  of  the  evi- 
<lence.  The  jury  found  that  the  deceased  came  to  his  death  at 
tlie  hands  of  the  appellant,  and  that  the  killinj^  was  felonious. 
The  verdict,  thereforcj  was  not  inconsistent  Avith  the  law  and 
ovideuce,  and  so  far  as  these  exceptions  are  concerned,  the  court 
did  not  err  in  refusing  to  grant  a  new  trial.  Tlie  third  assign- 
ment of  error  in  ^he  motion  for  a  new  trial  will  next  be  consid- 
ered. The  appelli\nt,  after  the  state  had  closed  her  evidence, 
oifcred  testimony  co  prove  that  Ije  had  the  reputation  among  his 
neifhbors  of  a  quiet  and  peaceable  citi^jen.  This  testimony  was 
refused,  and  the  appellant  excepted. 

That  a  person,  on  trial  for  a  crime  charged  against  him,  has  a 
right  to  offer,  in  his  defense,  testimony  of  his  good  character,  we 
can  have  no  doubt.  This  is  and  ought  to  be  the  general  rule,  with 
one  limitation,  however,  as  laid  down  by  the  authorities,  namely, 
that  "in  such  case  the  character  sought  to  be  proved  must  not  be 
general,  but  such  as  would  make  it  unlikely  that  the  defendant 
would  be  guilty  of  the  particular  crime  with  which  he  is  charged :'' 
Whart.  Am.  Crim.  Law,  sec.  636 ;  1  Bish.  Crim.  Proc,  sec.  489 ; 
1  Greenl.,  sec.  55. 

With  this  limitation,  such  testimony  should  be  allowed  to  go 
to  tiie  jury  in  every  case,  whether  it  be  regarded  by  the  court  as  a 
plain  or  doubtful  one,  and  be  considered  by  them  in  connection 
with  all  the  other  facts  and  circumstances,  and  if  the  case  happen 
to  he  a  plain  one,  and  from  the  facts  of  the  crime  charged  they 
beheve  the  accused  to  be  guilty,  they  must  so  find,  hotwithstand- 
ing  his  good  character :  1  Greenl.  Ev,,  sec.  55 ;  B  Id.,  sec.  25  ; 
1  Bish.  Crim.  Pr.,  sec.  489 ;  1  Whart  Am.  Crim.  Law,  636  ; 
State  V.  Henry,  5  Jones,  67 ;  Carroll.v.  State,  3  Humph.,  315. 

It  is  urged  by  the  counsel  for  the  state,  that,  notwithstand- 
ing the  genend  rule,  this  exclusion  of  evidence  was  not  error  in 
this  case,  beciinse  the  proof  of  the  cutting  was  conclusive,  and 
proof  of  aj)pellantV  good  cliaracter  ought  not  to  be  let  in  to  con- 
trovert such  proof.  It  is  true,  that  if  this  testimony  had  been 
let  in,  it  could  have  no  weight  in  controverting  the  fact  of  the 
cutting,  even  had  it  been  favorable  to  the  appellant,  and  were 
this  the  object  of  this  testimony,  we  might  well  conclude  that 


■I 


i- 


I;   1.: 


272 


AMERICAN  CRIMINAL  REPORTS. 


:;    'IS 


ml 


'^l*;! 
■-■•■i  '»•;! 


tlie  exclnsion  of  it  reenlted  in  no  prejudice  to  the  appellant. 
Hut  tliis  was  not  the  object  of  it.  It  was  evidently  intended,  by 
this  testimony,  to  rebut  the  presumption  of  malice  on  the  part 
of  the  appellant.  It  was  certainly  admissible  for  this  purpose. 
The  prisoner  and  the  deceased  had  been  quarreling  about  lialf  an 
hour  before  the  wound  was  given ;  they  had  been  quarreling  near 
and  at  the  time  the  wound  was  given,  and  the  wound  was 
inflicted  with  a  pocket-knife.  Such  testimony  was,  therefore, 
very  properly  admissible  to  show  a  want  of  malice,  at  least  to 
show  a  want  of  malice  sufficient  for  murder.  It  should  have 
been  admitted,  but  with  such  instructions  on  the  part  of  tlie 
court  as  to  the  character  of  such  evidence  as  would  guard  the 
jury  from  being  misled  by  it  or  giving  it  too  much  weight.  The 
exclusion  of  this  testimony  was,  therefore,  a  gross  error.  The 
fourth  reason  for  the  motion  for  a  new  trial  is,  that  the  jury  were 
permitted  to  go  into  a  drinking  saloon  and  drink  spirituous 
liquors  during  their  deliberations.  This  is  supported  by  affida- 
vits, from  which  it  appears  that  the  jury  visited  a  drinking 
saloon  during  their  deliberations  in  the  case,  where  they,  or  most 
of  them,  took  a  drink  of  spirituous  liquor,  the  sheriff  being 
with  them  and  paying  for  the  drinks.  It  does  not  appear  that 
in  consequence  of  this,  the  prisoner  did  not  receive  a  "  fair  and 
impartial  trial,"  and,  therefore,  it  furnishes  no  valid  reason  for  a 
new  trial.  This  conduct,  nevertheless,  was  very  repnihonsihle 
on  the  part  of  the  jurymen  guilty  of  it,  and  especially  on  the 
part  of  the  sheriff,  and  they  should  have  been  severely  punished 
by  the  court. 

The  fifth  reason  for  a  motion  for  a  new  trial  is,  that  the  jury 
were  permitted  to  separate  during  the  trial.  This  also  is  sup- 
ported by  affidavits,  from  which  it  appears  that  on  the  several 
occasions  when  the  jury  were  raking  rofrosliniciits  at  the  hotel, 
two  of  them,  being  colored  men,  were  acctonmiodated  apart  aTid 
in  a  different  room  from  the  others;  but  tlioy  were  all  under  the 
charge  of  an  officer.  This  was  in  no  respect  8U(!h  a  separation 
as  provided  against  by  the  law,  and  no  prejudice  could  be  pre- 
sumed to  have  resulted  to  the  appellant  thereby. 

For  the  single  error  we  have  ])ointed  out,  which  relates  to  the 
exclusion  of  evidence  of  good  character,  we  must  reverse  the 
judgment  of  the  court  below,  and  the  cause  must  be  remanded 
for  another  trial. 


KEE  r.  STATE. 


273 


Note. — There  is  no  homicide  unless  death  results  from  the  act  of  the  per- 
lon  nccused.  Therefore,  if  A  inflicts  upon  B  a  mortal  wotmd,  and  while  B 
is  languishing,  C  kills  him  by  an  independent  act,  A  is  not  guilty  of  the 
homicide:  SUitcv.  ticdles,  5  Joues  (N.  C),  L.,  115.  And  there  is  no  homicide 
unless  death  results  from  the  unlawful  act  within  a  year  and  a  day  from  the 
lime  of  its  commission.  But  as  to  just  what  instructions  are  to  be  given  to 
enable  the  jury  to  determine  whether  death  is  the  result  of  the  unlawful 
assault  to  such  a  degree  as  to  render  the  accused  guilty  of  homicide,  the 
authorities  are  not  agreed. 

In  Coffimn  v.  Com.,  10  Bush.  (Ky.),  495  (S.  C,  1  Am.  Crim.  Rep.,  293), 
where  a  surgical  operation  was  performed  upon  the  deceased,  supposed  to  be 
rendered  necessary  on  account  of  the  wound  inflicted  by  the  prisoner,  the 
rule  is  stated  as  follows:  "  In  cases  of  homicide,  if  an  operation  is  performed 
upon  tlie  deceased,  such  as  an  ordinarily  prudent  and  skillful  surgeon  to  be 
procured  in  the  neighborhood  would  deem  necessary,  and  such  operation  is 
performed  with  ordinary  skill,  the  respondent  is  responsible  for  the  death, 
although  the  operation  and  not  the  wound  made  by  him  caused  the  death. 
If  an  operation  is  performed  such  as  would  not  be  deemed  necessary  by  such 
a  surgeon,  or  if  it  was  deemed  necessary  and  not  performed  with  ordinary 
skill,  iind  death  results  from  the  operation,  and  not  from  the  wound  inflicted 
by  the  defendant,  the  respondent  ought  to  be  acquitted,  ijven  though  the  injuries 
inflicted  by  him  might  eventually  have  proved  fatal." 

In  State  V.  lienttey,  44  Conn.,  537,  the  authorities  are  collected  with  some 
care,  and  from  them  the  Supreme  Court  educes  and  lays  down  the  rule  in  this 
language:  "If  one  person  inflicts  upon  another  a  dangerous  wound,  one 
that  is  calculated  to  endanger  and  destroy  life,  and  death  en.sues  therefrom 
within  a  year  and  a  day,  it  is  sufticicnt  proof  of  the  offense,  either  of  murder 
or  manslaughter,  as  the  case  may  be,  and  he  is  none  the  less  responsible  for 
the  result,  although  it  may  appear  that  the  deceased  might  have  recovered  if  he 
had  taken  proper  care  of  himself,  or  that  unskillful  or  improper  treatment 
aggravated  the  wound  and  contributed  to  his  death. 

In  Brown  v.  State,  38  Tex.,  482,  it  was  held  that  the  trial  court  erred  in  refus- 
ing, on  the  application  of  counsel  for  the  respondent,  to  charge  the  jury,  that 
they  could  not  tind  the  prisoner  guilty  of  murder  unless  they  were  satisfied 
that  the  deceased  died  from  tlie  wound,  and  not  from  the  malpractice  of  the 
surgeon.  But  this  decision  is  based  upon  the  Texas  statutes,  the  court  sa3'- 
ing,  "Our  law  undoubtedly  changes  the  rule  of  the  common  law,  the  theory 
of  which  was  that  he  who  caused  the  first  injury  should  be  held  guilty,  upon 
the  theory  tliat  without  the  first  injury  no  other  would  have  followed,  as 
resulting  from  the  first."  See  also  loNev.,  100;  3  Tex.  App.,  2T1;  53  Ind., 
311,  in  which  latter  many  authorities  arc  collected. 

Vol.  II.— 18 


I  the 

the 

ided 


■  •    \ 

-i 

■  i 

'■\"\ 


»     ! 


274  AMKIUCAN  CRIMINAL  REPORTS. 


State  v.  Winthrop. 

(43  Iowa,  5i;t.) 

HouiciDB:    New-born  infant — Independent  life. 

An  infant,  although  fully  delivered,  cannot  be  considered  in  law  a  human 
being  and  the  subject  of  homicide  until  life,  independent  of  the  mother, 
exists;  and  the  life  of  the  infant  is  not  independent,  in  the  eyes  of  the 
law,  until  an  independent  circulation  has  become  established. 

Adams,  J.  The  defendant  is  a  physician,  and  was  employed 
by  one  Roxia  Clayton  to  attend  her  in  child-birth.  The  child 
died.  The  defendant  is  charged  with  producing  its  death.  Evi- 
dence was  introduced  by  the  state  tending  to  show  that  the  child, 
previous  to  its  death,  respired  and  had  an  independent  circula- 
tion. Evidence  was  introduced  by  the  defendent  tending  to  dis- 
prove such  facts. 

The  defendant  asked  the  court  to  give  the  following  instruc- 
tion :  "  To  constitute  a  human  being,  in  the  view  of  the  law, 
the  child  mentioned  in  the  indictment  must  have  been  fully 
born,  and  born  alive,  having  an  independent  circulation  and 
existence  separate  from  the  mother,  but  it  is  immaterial  whether 
the  umbilical  cord  which  connects  it  with  its  mother  be  severed 
or  not." 

The  court  refused  to  give  this  instruction,  and  gave  the 
following : 

"  If  the  child  is  fully  delivered  from  the  body  of  the  mother, 
while  the  after-birth  is  not,  and  the  two  are  connected  by  the 
umbilical  cord,  and  the  child  has  independent  life,  no  matter 
whether  it  has  breathed  or  not,  or  an  independent  circulation  has 
been  established  or  not,  it  is  a  human  being,  on  which  the  crime 
of  nmrder  may  be  perpetrated." 

The  giving  of  this  instruction,  and  the  refusal  to  instruct  as 
asked,  are  assigned  as  error. 

The  court  below  seems  to  have  assumed  that  a  cliild  may  have 
independent  life,  without  respiration  and  independent  circula- 
tion. The  idea  of  the  court  seems  to  have  been  that  the  life 
which  the  child  lives  between  the  time  of  its  birth  and  the  time 
of  the  establishment  of  respiration  and  independent  circulation  \& 
an  independent  life ;  yet,  the  position  taken  by  the  attorney-gen- 
eral, in  his  argument  in  belialf  of  the  state,  is  fundamentally  dif- 


STATE  V.  WINTHROP. 


275 


ferent.  He  says :  "  It  will  probably  not  be  contended  that  inde- 
pendent life  can  exist  without  independent  circulation,  and  hence 
the  existence  of  the  former  necessarily  presumes  the  existence  of 
the  latter,  and  so  other  or  further  proof  is  unnecessary."  He 
further  says:  "The  instruction  complained  of  amounts  to 
nothing  more  than  the  statement  that,  ii  the  child  had  an  inde- 
pendent life,  then  it  was  necessai-y  to  establish  these  facts  upon 
which  the  existence  of  life  necessarily  depends."  If  such  was 
the  meaning  of  the  court  below,  thv  language  used  to  express  it 
■was  very  unfortunate.  The  court  said  that,  if  the  child  had 
independent  life,  it  is  no  matter  whether  iiu  independent  c'.rcu- 
lation  had  been  established  or  not.  The  attorney-general  sa^s 
that  if  the  child  had  independent  life,  it  had  independent  circu- 
lation, of  course.  But  whether  we  take  the  one  view  or  the 
other,  we  think  the  instruction  was  wrong.  "We  will  consider 
first  the  view  that  independent  life  and  independent  circulation 
necessarily  co-exist,  and  examine  the  instruction  as  though  that 
•were  conceded. 

It  follows  that,  where  a  child  is  born  alive,  and  the  umbilical 
cord  is  not  severed,  and  independent  circulation  has  not  been 
estahlishod,  independent  life  is  impossible,  and  the  instruction 
amounts  to  this,  that  if  the  jury  should  find  independent  life, 
under  such  circumstances,  although  it  would  be  impossible,  they 
might  find  the  killing  of  the  child  to  be  murder.  Such  an 
instruction  could  serve  no  valuable  purpose,  and  would  neces- 
sarily involve  the  jury  in  confusion.  It  would  do  worse  than 
that — it  would  tell  the  jury  in  eflEect  that  they  might  find  inde- 
pendence of  life  in  utter  disregard  of  the  conditions  in  which 
alone  it  could  exist.  To  show  how  the  defendant  was  preju- 
diced, if  the  instruction  is  to  be  viewed  in  this  light,  we  may  say 
that  there  was  evidence  that  the  ductus  arteriosus  was  not 
closed.  This  evidence  tended  to  show,  slightly  at  least,  that 
independent  circulation  had  not  been  established.  The  instruc- 
tion told  the  jury,  by  implication,  that  they  might  disregard  this 
evidence.  But  we  feel  compelled  to  say  that  we  do  not  think 
that  the  attorney-general's  interpretation  of  the  instruction  ever 
occurred  to  the  court  below.  It  is  plain  to  see  that  the  court 
below  meant  that  independent  life  is  not  conditioned  upon  indo- 
puiident  circulation.  The  error,  if  there  was  one,  consisted  in 
assuming  that  it  was  not.  The  question  presented  for  our  deter- 
mination is  by  no  means  free  from  difficulty.     Can  the  child 


Bl.l-:   ■Hr^: 


I. 


'^ 


'o 

?-  1 


276 


AMERICAN  CItlMINAL  IfKl'OKTS. 


liave  an  independent  life,  wliiio  its  circulation  is  still  dependent 
on  the  mother  ?  There  are  two  senses  in  which  the  word  inde- 
pendence may  be  used.  There  is  actual  iiulopondence,  and  there 
is  potential  independence.  A  child  is  actnully  independent  of  its 
father  when  it  is  earning  its  own  living ;  it  is  potentially  inde- 
pendent when  it  is  capable  of  earning  its  own  living. 

We  think  the  court  below  used  the  word  independent  in  the 
latter  sense.  While  the  blood  of  the  child  circulates  through 
the  placenta,  it  is  renovated  through  the  lungs  of  the  mother. 
In  such  sense  it  breathes  through  the  lungs  of  the  mother: 
Wharton  &  Stille's  Medical  Jurisprudence,  vol.  2,  sec.  128.  It 
has  no  occasion,  during  that  period,  to  breathe  through  its  own 
lungs.  But  when  the  resource  of  its  mothers  lungs  is  denied  it, 
then  arises  the  exigency  of  establishing  independent  respiration 
and  independent  circulation.  Children,  it  seems,  oftentimes  do 
not  breathe  immediately  upon  being  born,  but  if  the  umbilical 
cord  is  severed,  they  must  then  breathe  or  die.  Cases  are 
i-ecorded,  it  is  true,  where  a  cbild  has  been  wholly  severed  from 
the  mother,  and  respiration  has  not  apparently  been  established 
until  after  the  lapse  of  several  minutes  of  time.  During  that 
time  it  nrast  have  had  circulation,  and  the  circulation  was  inde- 
pendent. Whether  it  had  inappreciable  respiration,  or  was  in 
the  condition  of  a  person  holding  his  breath,  is  a  questi<m  not 
necessary  to  be  considered  for  the  determination  of  this  case.  It 
is  sufficient  to  say,  that  while  the  circulation  of  the  child  is  still 
dependent,  its  cojinection  with  the  mother  may  be  suddenly  sev- 
ered by  artificial  means,  aJid  the  child  not  necessarily  die.  This 
is  proven  by  what  is  called  the  Csesarean  operation.  '  A  live 
child  is  cut  out  of  a  dead  mother  and  survives.  Such  a  child 
has  a  putential  independence  antecedent  to  its  actual  indepen- 
dence. So  a  child  which  has  been  born,  but  has  not  breathed, 
and  is  connected  with  the  mother  by  the  umbilical  cord,  may 
have  the  power  to  establish  a  new  life  upon  its  own  resources, 
antecedent  to  its  exercise.  According  to  the  opinion  of  the 
court  below,  the  killing  of  the  child  at  that  tinu^  may  be  murder. 
It  is  true,  that  after  a  child  is  born,  it  can  no  longer  be  called  a 
fmfus,  according  to  the  ordinary  meaning  of  that  word.  Beck 
says,  however,  in  his  Medical  Juris.,  vol.  1,498:  "It  must  be 
evident  that  when  a  cliild  is  born  alive,  but  has  not  yet  respired, 
its  condition  is  precisely  like  that  of  iho/wtus  in  utero.  It  lives 
merely  because  the  fa>.t(il  circulation  is  still  going  on.     In  this 


I  -'lii 


.1  ,., 


STATE  V.  WINTHROP. 

case  none  of  the  organs  undergo  any  cliange."  Casper  says,  in 
his  Forensic  Med jpine,  vol.  3,  33  :  "  In  foro  the  tenn  '  life ' 
imist  be  regarded  as  perfectly  synonymous  with  'respiration.' 
Life  means  respiration.  Not  to  have  breathed  is  not  to  have 
lived." 

While,  as  we  have  seen,  life  has  been  maintained  independent 
of  the  mother,  without  appreciable  respiration,  the  quotations 
iiliove  made  indicate  how  radical  the  difference  is  regarded 
between  foetal  life  and  the  new  life  which  succeeds  upon  the 
et^tablishment  of  respiration  and  independent  circulation.  If  we 
turn  from  the  treatise  on  Medical  Jurisprudence  to  the  reported 
decisions,  we  find  this  difference,  which  is  so  emphasized  in  the 
former,  made  in  the  latter  the  practical  test  for  determining 
when  a  child  becomes  a  human  being  in  siich  a  sense  as  to 
become  the  subject  of  homicide.  In  Her  v.  Enoch,  5  C.  &  P., 
5IV.»,  Mr.  Justice  J.  Parke  said  :  "The  child  might  have  breathed 
before  it  was  born,  but  its  liaving  breathed  is  not  sufficiently  life 
to  make  the  killing  of  the  child  murder.  There  must  have  been 
ail  iiulej)endent  circulation  in  the  child,  or  the  child  cannot  be 
considered  as  alive  for  this  pui-pose." 

[n  Rey'na  v.  Trkloe,  1  Carrington  &  Marshman,  650,  Erskine, 
J.,  in  charging  the  jury,  said :  "  If  you  are  satisfied  that  this 
child  had  been  wholly  produced  from  the  body  of  the  prisoner 
alive,  and  that  the  prisoner  willfully  and  of  malice  aforethought 
strangled  the  child  after  it  had  l)een  so  produced,  and  while  it 
was  alive,  and  while  it  had  independent  circulation  of  its  own,  I 
am  of  the  opinion  that  the  charge;  is  made  out  against  the  pris- 
oner." See,  also,  Gi'cenlcaf  on  Ev.,  vol.  3,  sec.  136.  It  may  be 
asked  why,  if  there  is  a  possibility  of  independent  life,  the  kill- 
ing of  such  a  child  might  not  be  murder.  Tlie  answer  is,  that 
there  is  no  way  of  proving  that  sucli  possibility  existed  if  actual 
independence  was  never  established.  Any  verdict  based  upon 
«uch  finding  would  be  the  result  of  conjecture. 


11 


15.  il 


WM 


ii>k 


i 


278  AMERICAN  CRIMINAL  REPORTa 


State  v.  Bohan. 
(15  Kas.,  407.) 
HowcTDB  :    Dying  declarations — Change  of  wntM. 

On  the  trial  of  a  case  where  it  ajipeurcirt  tliat  two  persons  were  killed  by  the 
prisoner  at  the  same  time  and  under  the  same  circnmstances,  one  of  whom 
died  instantly  and  the  other  survived  a  few  hours,  the  prisoner  being  on 
trial  lor  the  murder  of  the  one  who  died  instantly,  it  was  held  error  to 
admit  in  evidence  the  dying  declarations  of  ihu  one  who  survived  a  few 
hours,  fiin  death  not  being  the  subject  of  the  charge. 

It  is  not  error  to  refuse  a  change  of  venue  on  the  ground  of  prejudice  in  the 
community,  where  the  prima  facie  case  made  by  the  alBdavits  filed  by  tha 
respondent  is  fully  answered  and  clearly  overcome  by  the  affidavits  died 
in  reply  by  the  state. 

KiNOMAN,  C.  J.  The  appellant  was  tried  for  the  murder  of 
Thomas  Anderson,  and  found  guilty  of  murder  in  the  second 
degree,  and  brings  the  case  "to  this  court  by  appeal.  In  the  argu- 
ment attention  is  called  to  two  errors  of  the  court  below.  Those 
alleged  errors  are,  first,  in  not  granting  the  motion  for  a  change 
of  venue,  and  ptcond,  in  admitting  the  so-called  dying  declara- 
tion of  William  N.  Anderson  in  evidence. 

Did  the  court  err  in  refusing  to  order  a  change  of  venue  J 
The  apph'cation  was  supp(»rted  by  the  affidavits  of  the  appellant, 
the  sheriff,  and  the  acting  jailor  of  the  county.  These  affidavits 
made  out  a  prima  faeie  case  for  removal,  but  the  state  read  a 
great  number  (over  ninety)  of  affidavits,  from  citixens  of  each  of 
the  townships  of  the  county,  abundantly  showing  that  there  was 
no  such  state  of  feeling  generally  prevailing  throughout  tlio 
county  as  would  prevent  the  accused  from  having  a  fair  and 
impartial  trial  therein,  or  would  eveti  make  it  (iifficiilt  to  obtain 
an  impartial  jury  for  the  trial.  OuL^idf^  the  village  of  Brook- 
ville,  where  the  accused  and  the  deceased  had  resided  and  boon 
generally  known,  there  seem;  to  have  been  no  more  feeling  than 
usually  prevails  in  any  comnninity  where  there  is  a  homicide. 
Two  lives  were  tiiken  by  violence.  The  better  feelings  of  men 
were  shocked  by  the  event.  Some  intemperance  of  expression 
may  bo  expected  in  such  cases  from  men  ;  but  it  is  obvious  that 
while  that  feeling  existed,  it  created  no  strong  prejudice  against, 
the  accused.  The  extracts  from  the  two  ))a])ers  at  Saliuii,  wliili' 
they  in  several  important  respects  stated  the  faots  tnori'  liarslily 


STATE  D.  BOHAN. 


against  the  accused  tlian  the  testimony  justified,  yet  they  at  thu 
same  time  cautioned  tlieir  readers  that  the  statements  made  were 
galliered  from  reports,  and  must  not  be  considered  as  reliable,  and 
that  it  was  the  duty  of  all  to  wait  till  the  case  was  heard  before 
forming  their  opinions.  With  this  caution  before  the  reader,  the 
mistakes  as  to  the  facts  would  hardly  create  a  prejudice  ajj^ainst 
the  accused  in  the  minds  of  fair  men.  There  were  articles  in 
the  lirookville  paper  strongly  tending  to  inflame  the  public  mind 
and,  perhaps,  so  intended,  but  that  paper  had  little  circulation  in 
tlie  county  outside  of  Brookville,  and  in  several  of  the  tovvnshi|)8 
was  not  known  at  all.  Following  the  decision  in  the  case  of 
The  State  v.  Ilorne,  9  Kas.,  119,  we  are  of  the  opinion  that 
there  was  no  error  in  refusing  a  change  of  venue. 

Was  there  error  in  admitting  the  dying  declaration  of  William 
N.  Anderson  ?  It  is  so  urged  on  various  grounds,  the  principsil 
of  which  are  these :  because  the  preliminary  pror  ^  did  not  suf- 
ficiently show  that  the  person  making  the  declaration  was  certain 
that  the  hand  of  death  was  on  him ;  that  he  was  not  in  possession 
of  sound  mental  faculties  at  the  time  such  declaration  was  made ; 
that  all  the  declarant  said  was  not  reduced  to  writing,  but  only 
that  part  that  the  writer  deemed  relevant ;  and  chiefly,  because 
the  dying  declaration  of  William  N.  Anderson,  made  hours  after 
tlie  death  of  Thomas  Anderson,  is  not  competent  evidence 
against  the  accused  upon  his  trial  on  .an  information  for  the  miT- 
(Icr  of  Thomas  Anderson  only.  As  our  conclusion  on  the  last 
point  suggested  is  decisive  hi  the  case,  the  consideration  of  the 
other  points  may  be  waived,  especially  as  their  decision  depends 
upon  questions  of  fact  raised  upon  the  record,  rather  than  upon 
<'ontroverted  points  of  law.  The  fac*s  of  the  case  bearing  upon 
tlie  question  under  consideration  are  substantially  those :  A 
little  before  four  o'clock  a.  m.,  on  the  3d  of  November,  1874, 
the  appellant  shot  Thomas  Anderson  and  William  N.  Anderson. 
The  shots  (four  in  number)  were  in  rapid  succi'.sfijon,  but  a  brief 
time  intervening  between  the  first  and  last  shots.  Of  the  wounds 
then  inflicted,  Thomas  Anderson  died  almost  instantly,  without 
uttering  a  word.  William  N.  Anderson  lived  about  seventeen 
hours,  and  some  time  about  noon  made  the  statement  admitted  as 
a  dying  dechiration.  The  ap|)ellant  was  tried  on  an  information 
for  the  murder  of  Thunuvs  Anderson  only.     On  these  facts  the 


:!»■ 


i    1 


(juestion    arises,  can    tlu^ 


dying 


declaration    of   one   ]>(  rson   be 


received  as  proof  of  guilt  against  a  party  charged  witii  murder- 


m  1    I 


)  '  i 


14 


^rii 


1.. 


280 


AMERICAN  CRIMINAL  REPORTS. 


ing  some  other  person  ?  In  The  State  v.  M<'dlicott,  9  Kas.,  283, 
the  rule  on  this  point  was  thus  stated  :  "  Such  declarations  there- 
fore are  admissible  only  when  the  death  of  the  person  who  made 
the  declaration  is  the  subject  of  the  charge,  and  where  the  cir- 
cumstances of  the  death  are  the  subject  of  the  dying  declaration." 
In  that  case  the  question  involved  wag,  whether  the  decfoased  Wiw 
in  the  full  belief  that  he  was  in  artieulo  ?/>ortus  when  he  inade 
the  declaration ;  and  the  attention  of  the  court  was  mainly 
directed  to  that  question,  and  the  part  quoted  need  not  have 
been  stated.  The  court,  therefore,  feels  no  such  enibarrassineiit 
on  account  of  what  was  said  in  that  case  as  will  interfere  with  a 
full  examination  of  the  question  now.  In  1  Phillips  on  Ev., 
287,  the  rule  is  laid  down  thus :  "  Such  declarations  are  gen- 
erally admissible  only  where  the  death  of  the  declarant  is  the 
subject  of  the  inquiry,  and  where  the  cinaimstances  of  the  deatli 
are  the  subject  of  the  dying  declaration."  And  to  the  same 
effect  the  rule  is  laid  down  in  the  decisions  generally.  In  a  note 
to  section  156,  1  Greenl.  on  Ev.,  Mr.  Kedfield  states  thdt  this 
evidence  is  not  received  upon  any  other  ground  than  that  of 
necessity,  in  order  to  prevent  murder  going  unpunished,  and  that 
a  misapprehension  of  the  true  grounds  on  which  such  testimony 
can  be  received  has  sometimes  led  courts  into  error,  as  in  Eng- 
land, where,  at  one  time,  such  declarations  were  admitted  in 
other  than  murder  cases,  lint  these  decisions  have  been  over- 
ruled as  not  correctly  stating  the  law.  The  admission  of  this 
kind  of  testimony  is  an  exception  to  the  general  rule  that 
excludes  hearsay  testimony.  Its  admission  can  be  justified  only 
on  the  ground  of  absolute  necessity,  growing  out  of  the  fact  that 
the  murderer,  by  j)»ittiiig  the  witnops.  an<l  generally  the  sole  wit- 
ness of  his  crime,  beyond  the  p()\ver  of  tlu^  c(»urt  b}'  killing  him, 
Bhall  not  thereby  escape  the  consequences  of  his  crime. 

On  no  other  ground  can  the  admission  of  such  testimony  be 
justified.  It  is  true  that  sometimes  courts  have  given,  as  the 
reasons  for  its  admission,  some  of  those  limitations  that  have  been 
established  as  safeguards  to  prevent  the  rule  from  being  abused. 
Such  statements  arc  not  sound,  and  are  likely  to  lead  to  confu- 
sion, and  in  some  they  undoubtedly  have  done  so.  Necessity, 
then,  being  the  only  ground  0!i  which  such  testimony  can  bo 
admitted,  it  remains  to  be  seen  whether  that  necessity  exists  so 
generally,  or  to  so  great  an  extent,  wlu'n!  the  deatli  of  any  one 
else  than  the  declarant  is  the  subject  of  the  inquiry,  as  to  justify 


m 


STATE  V.  BOHAN. 


281 


the  adoption  of  a  rule  admitting  snch  testimony.  Cases  may  be 
6Ug{?ested  where  the  necessity  appears  to  be  strong.  Thus,  where 
a  murder  is  committed,  and  a  material  witness  of  the  crime,  but 
not  affected  by  it,  and  by  whom  alone  it  can  be  proved,  is  dying 
and  in  that  hour  makes  a  declaration  of  the  facts  which  he 
knows  and  which  took  place  months  before.  This  declaration  Is 
made  under  circumstances  equivalent  to  the  sanction  of  an  oath ; 
but  the  accused  cannot  cross-examine,  cannot  call  attention  to 
other  material  facts  not  thought  of  by  the  declarant. 

No  one  will  c(jntend  that  this  declaration  can  be  given  in  evi- 
dence. The  necessity  exists,  but  it  applies  to  a  single  case,  and 
not  to  ,a  class  of  cases,  and  therefore  should  not  be  made  an 
exception  to  the  rule  excluding  hearsay  testimony.  It  would  be 
as  (liflicult  to  suggest  a  case  where,  as  in  this,  two  men  are  killed 
at  or  near  the  same  time,  that  any  necessity  exists  for  the  admis- 
sion of  the  statement  of  the  one  whose  death  was  not  the  subject 
of  the  inqiiiry,  as  it  is  in  any  other  criminal  case  where  a  material 
witness  is  dead.  This  case  is  a  fair  illustration.  If  the  declara- 
tion of  William  IS".  Anderson  was  necessary  to  convict  the 
accused,  then  it  could  have  been  used  on  the  trial  for  the  murder 
of  William  N.  Anderson.  The  accused  was  as  guilty  of  his  mur- 
der as  of  that  of  Thonuis.  There  is,  then,  no  necessity  for 
extending  the  exception  further  than  has  already  been  done.  Once 
l)roiik  down  the  banners  established  by  the  wisdom  of  our  law. 
and  extend  the  exception  beyond  the  reason  that  permitted  it, 
aii<l  it  would  let  in  a  most  dangerous  species  of  evidence  in  a 
wlinle  class  of  cases.  The  great  weight  of  authority  will  bear 
oiit  the  rule  as  laid  down  in  The  State  i\  Medlieott.  And  reason 
is  idl  in  favor  of  holding  the  rule  as  there  stated.  In  the  case  of 
Sfat£  V.  TerrUl,  12  Tlich.  (S.  C),  321,  and  of  State  r.  W!hoN,  2l^ 
La.  An.,  558,  which  greatly  resemble  this  .ease,  such  evidence 
M-as  admitted.  The  eases  do  not  in  our  judgment  rest  on  author- 
ity, and  no  satisfactory  reasons  are  given  for  the  ruling.  These 
cases  stand  alone  in  this  country,  and  we  prefer  to  adhere  to  well- 
eetablished  rules  rather  than  follow  decisions  ft>r  which  no  reason 
is  given,  and  which  seem  dangerous  in  their  tendency.  It  fol- 
lows that  the  evidence  was  improperly  admitted.  Tiic  It  arned 
counsel  for  the  state,  however,  suggests  that  the  case  was 
abundantly  made  out  in  every  particular  against  the  appellant  by 
«itlier  evidence.  This  nu\y  be  so,  and  if  so,  it  is  a  striking  illus- 
trutioM  of  how  unnecessary  it  was  to  introduce  the  dying  declara- 


m\n 


W 


ill 


AMERICAN  CRIMINAL  REPORTS. 


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tion  in  this  case.  But  what  effect  this  evidence  had  upon  the 
jury,  and  what  effect  tlie  other  evidence  had,  it  is  not  tlie  pro- 
vince of  this  court  to  decide ;  nor  has  it  the  means  of  doing  bq. 
The  evidence  was  admitted  after  a  long  struggle,  and  may  well 
have  had  more  influence  upon  the  jury  than  it  would  have  u])ou 
this  court.  The  evidence  was  vital,  and  as  it  was  improperly 
admitted,  the  judgment  must  be  reversed  and  a  new  trial 
ordered. 
All  the  justices  concurring. 


Collins  v.  Commoj  ^balth. 
(12  Bush.  (Ky.),  271.) 


HoHiciDB:    Dying  deelaratiorui  —  Kespoudent  pi-oeuring  abtenee  of  Common. 
wealth's  witnesses —  Testimony  of  absent  witness  on  former  trial. 

Dying  dcclnrations  can  only  be  admitted  in  evidence  when  they  relate  to  the 
act  of  killins:,  and  the  circumstances  immediately  attending  it,  and  form- 
ing part  of  the  res  i/esta. 

Where  the  fact  of  the  killing  was  practically  admitted,  it  was  held  error  to 
admit  dying  declarations  which  were  in  substance  as  follows:  "  Michael 
Collins  killed  me,  and  killed  me  for  nothing,"  and,  "I  never  carried  auy- 
thing  to  hurt  any  one." 

The  prosecution  have  a  right  to  give  in  evidence  against  the  respondent  that 
he  participated  in  miikiug  iinangeiueuts  for  uue  of  the  commonwealth's 
witutsses  to  leave  the  pliice  at  wliich  the  trial  was  in  progress. 

It  is  only  when  a  witness  is  dead  that  his  evidence  given  on  the  first  trial  of  a 
criminal  case  can  t)e  proved  on  th(.'  second  trial  of  the  same  case.  The  fact 
that  he  is  out  of  the  statu,  and  his  residence  unknown  at  the  time  of  the 
second  trial,  docs  not  make  his  former  testimony  competent. 

Lindsay,  C.  J.  It  is  by  no  moans  clear  that  the  deceased  made 
the  statements  allowed  to  be  proved  as  dying  declarations  uiidfr 
a  sense  of  impending  dissolution.  But  if  they  were  provable 
in  that  regard,  they  ought  to  have  l)een  excluded  from  tiie  jury 
for  another  reason.  Thoy  were,  in  substance,  "  That  Michael 
Collins  killed  me,  and  killed  me  for  nothing;"  that  "I  never 
carried  any  thing  to  hurt  any  one." 

In  the  case  of  Lciber  v.  The  Commonweitlih,  9  Hush,  11,  this 
court  held  the  decided  weight  of  authority  to  be,  that  it  is  a 
general  rule  that  dying  declarations  are  only  admissible  in  evi- 
dence where  the  death  of  the  deceased  is  the  subject  of  the 
charge,  and  the  circumstances  of  the  death  the  subject  of  the 


1  evi- 
f  the 


f  the 


COLLINS  ».  COMMONWEALTH. 


28? 


declarations,  and  that  such  evidence  should  be  admitted  only  upon 
the  ground  of  necessity  and  public  policy,  and  should  be  restricted 
to  the  act  of  killing,  and  the  circumstances  immediately  attend- 
in"-  it  and  forming  part  of  the  res  gestoB.  In  this  case,  it  was 
nnnccessary  to  prove  the  declarations  of  the  deceased  to  estab- 
lish the  fact  that  the  killing  was  done  by  the  accused.  That  fact 
was  abundantly  proved  by  several  uncontradicted  witnesses,  and 
was  virtually  admitted  by  the  line  of  defense  adopted.  The 
Btatement  that  Collins  killed  the  deceased  "for  nothing"  was  but 
the  expression  of  an  opinion,  and  was  clearly  inadmissible : 
1  Taylor  on  Evidence,  p.  044. 

The  statement  that  he  (the  deceased)  "  had  never  carried  any 
thing  to  hurt  any  one,"  did  not  relate  directly  to  the  act  of 
killing,  and  was  not  a  circumstance  immediately  connected  with  it. 
Proof  of  this  statement  was,  therefore,  inadmissible.  Neither 
of  the  two  statements  proved  anything  forming  part  of  the  rea 
gestae.  They  were  each  incompetent,  and  they  each  tended  to 
prejudice  the  rights  of  the  accused. 

We  can  not  say  the  court  below  erred  in  permitting  the  prose- 
cution to  prove  that  the  appellant  had  participated  in  making 
arrangoinents  for  one  of  the  commonwealth's  witnesses  to  leave 
the  place  at  which  the  trial  was  in  progress.  That  fact  was  a 
circumstance  the  jury  might  consider,  just  as  in  similar  cases  the 
flight  of  the  accused  may  be  considered :  Wharton's  Am.  Crim. 
Law,  714,  722. 

The  appellant  can  not  complain  that  he  was  not  permitted  to 
prove  the  statements  made  by  the  witness  Duncan  on  a  former 
trial.  The  witness  was  aj)sent  from  the  state,  and  his  place  of 
residence  was  unknown ;  but  these  facts  did  not  entitle  him  to 
make  tiio  projxised  proof.  Whatever  may  be  the  rule  as  to  the 
testimony  given  by  an  absent  witness  on  a  former  trial  in  a  civil 
action,  it  can  not  be  proved  on  a  criminal  trial.  The  courts  allow 
proof  of  such  testimony  when  the  witness  is  dead,  but  we  are 
not  advised  that  the  rule  has  ever  been  extended  so  far  as  to  per- 
mit cither  the  commonwealth  or  the  accused  to  prove  the  state- 
ments of  a  witness  upon  the  sole  ground  that  he  was  absent  from 
the  state,  and  beyond  the  territorial  jurisdiction  of  the  court. 
In  the  case  of  the  Pinple  v.  Newnuni,  5  Hill  N.  Y.,  296,  it 
was  directly  decided  that  in  a  criminal  case  proof  of  this  charac- 
ter is  inadmissible.  The  fact  that  the  legislature,  by  the  154th 
section  of   the  criminal  code  of  practice,  provides  means  by 


I    \ 


284 


AMERICAN  CRIMINAL  REPORTS. 


Sii: 


which  a  party  charged  with  crime  may  preserve  the  evidence  of 
a  witness  whose  death  is  apprehended,  and  then  provides  that 
tlie  evidence  so  preserved  may  be  used  upon  the  death  of  the 
witness,  and  in  no  other  case,  seems  to  indicate  the  legislative 
intent  that  the  rule  in  force  as  to  absent  witnesses  at  the  time  of 
the  adoption  of  the  code,  should  not  be  abrogated  or  modified. 
"While  the  courts  are  not  absolutely  boimd  by  this  seeming  inten- 
tion, it  is  at  least  worthy  of  consideration,  when  we  are  asked  to 
make  an  innovation  upon  what  appears  to  be  an  established  rule 
of  practice. 

We  regard  the  instructions  given  in  this  case  as  altogetljer 
unobjectionable.  For  the  single  error  in  the  admission  of  incoin- 
petent  evidence,  the  judgment  of  conviction  is  reserved,  and  the 
cause  remanded  for  a  new  trial  upon  principles  not  inconsistent 
with  this  opinion. 

Note. — Reynolds  v.  United  Statex,  8  Otto,  145,  was  a  prosecution  for  poly- 
gamy in  tlie  U.  8.  district  court,  sittinj^  in  Utah.  Evidence  wasgivin  on  the 
trial  to  show  tliat  a  witness  who  testified  on  a  former  trial  against  the  dcfcnd- 
nnt  for  the  same  offense,  but  on  a  different  indictment  had  been  kept  away 
from  tlie  trial  by  the  defendant.  Her  evidence  on  the  former  trial  was  held 
adnn,ssible,  and  this  was  sustained  by  the  Supreme  (^ourt  of  the  United  States. 
On  this  point  Ch.  J.  Waite,  who  delivered  the  opinion  of  the  court  says: 
"The  constitution  gives  the  accused  the  rii^ht  to  a  trial  at  which  he  should  be 
confronted  with  the  witnesses  against  him;  but  if  a  witness  is  absent  l)y  iiis 
own  wrongful  procurement,  he  cannot  complain  if  competent  evidence  is 
admitted  to  supply  the  place  of  that  he  has  kept  away.  The  constitution  does 
not  guarantee  an  accused  per.son  against  the  legiliinalc  consequences  of  his 
own  wrongful  acts.  It  grants  him  the  privilege  of  being  confronted  willi  the 
witnesses  against  him;  but  if  he  vohuitarily  keeps  the  witmss  away,  lie  can 
not  insist  on  his  privilege."  To  the  same  effect  is  Willmms  >\  F/a/c,  1!)  Geo  , 
403,  For  decisions  to  a  contrary  effect,  and* in  harmony  with  tlie  main  ciwc, 
see  Bergen  v.  People,  17  HI.,  420;  l\uple  v.  A'eictndii,  5  Hill  (N.  Y,),  2i)5; 
Finnv.  Com.,  5  Itand.  (Va.),  701;  lirngi/  v.  Com.,  10  Oratt.  (Va.),  723. 


.-.HTT^- 


PxsToiiius  v.  Commonwealth. 

(84  Vn.  St.,  158.) 

Homicide  :    8elf-ilefeti»e  —  Charge  to  jury. 

An  Irstnictlon  to  the  jury  from  which  they  might  infer  that  the  prisoner  wiw 
guilty  of  murder  in  the  first  degree,  if  he  fired  with  a  willful,  deliberate 
and  premeditated  intent  to  lake  life,  even  though  the  defendanl  had  a 
reasonable  belief  of  bodily  harm,  and  acting  on  that  belief  and  apprchen 
sion  of  danger  fired  the  fatal  shot,  is  erroneous. 


I 


PISTORIUS  V.  COMMONWEALTH. 


285 


March  12th,  1877.     Before  Ao^  kw,  C.  J.,  Meecue,  Goedon, 
Faxon,  Woodward  and  Steereit,  J  J.     Shaeswood,  J.,  n^scut. 

Error  to  the  court   of   oyer  and  terminer  of  Montgomery 
county.     Of  July  terra,  1876,  No.  40. 

Indictment  of   Blasius  Pistorius  for  the    murder  of    Isaac 
Jaquctte. 

Blasius  Pistorius,  who  had  recently  come  from  Germany,  was 
living  with  his  brother  John,  on  a  farm  adjoining  that  of  Jaquette, 
the  deceased.     A  creek,  called  Stony  Creek,  separated  the  two 
farms.    A  difficulty  had  arisen    between   John   Pistorius  and 
Jaquette  about  the  cows  of  the  latter,  which,  in  coming  down  to 
the  creek  to  water,  sometimes  strayed  upon  the  lands  of  Pisto- 
rius.   This  diffi(!ulty  had  occasioned  considerable  feeling  between 
the  two  families.     On   the  day  of  the  homicide,  the  cows  of 
Jaquette,  in  charge  of  a  lad  named  Muloch,  were  driven  as  usual 
to  tiie  crock.     While  they  were  drinking,  the  lad  sat  under  a 
tree,  but  perceiving  that  the  cows  were  wandering  up  the  creek, 
he  started  in  pursuit,  when  the  prisoner  emerged  from  behind 
some  Inishes  along  the  creek,  and  pointing  his  pistol  and  using 
some  broken  English,  threatened   to  shoot.     The  boy  then  ran 
after  Jacpiette,  who  left  the  field  M'hore  he  was  at  work  and 
ptarted  witli  the  lad  down  to  the  creek.     When  they  approached, 
Blasius  pointed  the  pistol  at  .Ia<piotte,  v/lio  picked  up  two  stones, 
reniiirkiiig,  "  if  you   attempt  to  shoot  me,  Pll  put  you  off  that 
bank."    They  were  at  this  time  on  oi)i)osite  sides  of  the  creek. 
Jaquctte  then  walked  to  the  other  side  of  the  creek,  Blasius  still 
keeping  the  pistol  pointed  at  him.     As  he  crossed  the  creek, 
Jaquette  made  some  remark  like,  "Why can't  you  leave  my  cows 
alone  when  I  leave  them  out  to  water  on  mj'  own  ground  ? " 
The  ])ris()ner  still  pointing  the  pistol  at  him,  Jaquette  said  to  the 
lad  and  a  little  girl  wh<»  was  near  by,  "You  see  that;  I  will  have 
him  arrested."     Jacpiette  then  threw  down  the  stones  and  walked 
up  the  bank  towards  the  prisoner,  who  at  this  time  had  the  pis- 
tol down  by  his  side.     WIk'Ii  he  was  about  four  feet  from  the 
prisonei',  the  latter  again  raised  the  pistol.     Jaquette  approached 
closer,  and  as  he  did  threw  up  his  arm  to  knock  away  the  pistol 
from  his  face,  but  did  not  touch  it.     When  the  arm  of  Jaquette 
was  raised  the  pistol  was  turned,  presented  at  Jaquette's  body 
and  tired,  the  prisoner  having  his  hand  on  the  trigger.    Jaquette 
threw  up  his  arms,  exclaiming  he  was  killed,  and  fell  backwards 
into  the  creek.     When  requested  to  help  carry  Jaquette  out  of 


'  1^ 


'■if 


i 

IS 


'Vi\ 


-f 


si 


286 


AMERICAN  CUIMINAL  REPORTS. 


"■5 


the  sun,  the  prisoner  replied,  "  No,  let  him  lay  there  and  die." 
The  only  questions  passed  upon  by  this  court  were  those  raised 
by  the  following  points  submitted  by  the  prisoner,  and  the 
answers  of  the  court  thereto : 

"  3.  If  the  jury  find  that  the  defendant  fired  the  pistol  when  he 
was  assaulted  by  the  deceased,  under  apprehension  of  bodilj 
harm,  he  cannot  be  convicted  of  murder  in  the  first  degree." 

Answer.  "  This  is  true,  unless  the  prisoner,  at  the  time  he 
fired,  had  a  willful,  dt  liberate  and  premeditated  intention  to  take 
the  life  of  the  deceased,  and  the  pistol  was  not  intended  for 
defensive  purposes." 

"  4.  If  the  defendant,  although  in  no  imminent  peril  when  the 
deceased  approached  him,  yet  had  a  reasonable  belief  of  bodily 
harm,  founded  upon  the  manner,  gestures  or  appearance  of  the 
deceased,  immediately  before  he  fired  the  pistol,  he  cannot  be 
■convicted  of  murder  in  the  first  degree." 

Answer.  "This  is  true,  unless  the  prisoner  fired  with  the 
willful,  deliberate  and  premeditated  intent  to  take  the  life  of  the 
deceased,  and  not  for  the  purpose  of  self-defense." 

"  6.  If  the  jury  find  that  the  deceased  approached  the  defendant 
in  a  threatening  manner,  and  the  defendant  had  a  reasonable 
belief  of  bodily  harm,  although  mistaken,  he  cannot  be  convicted 
of  murder  in  the  first  degree." 

Answer.  "  This  is  true,  if  you  believe  the  prisoner  acted  upon 
that  apprehension,  but  it  is  not  true,  if  you  find,  beyond  all 
reasonable  doubt,  he  fired  with  a  willful,  deliberate  and  premedi- 
tated intent  to  take  life." 

The  result  of  the  trial  was  a  verdict  of  murder  in  the  first 
degree,  and  the  prisoner  was  sentenced  to  death.  This  writ  was 
then  taken  and  the  errors  assigned,  inter  alia,  were  the  forego- 
ing answers  to  defendant's  points. 

George  W.  Rogers,  Stephen  8.  Remah  and  James  Boyd,  for 
plaintiff  in  error. 

Commonwealth  v.  Dunn,  8  P.  F.  Smith,  17;  Murray  v.  Com- 
monwealth,  29  Id.,  317;  Kdly  v.  Commonwealth,  1  Grant, 
484,  were  authorities  for  the  points  8ul)mitted  by  defendant. 

If  the  killing  was  done  when  the  prisoner  was  assaulted,  and 
he  apprehended  bodily  harm  (as  assumed  by  the  third  point),  or 
he  had  a  belief,  founded  upon  the  maimer,  gestures  or  appear- 
ance of  the  assailant  (as  assumed  by  the  fourth  point),  how 
could  there  be  that  willful,  deliberate  and  premeditated  intention 


lift 


^ 


PTSTOUIUS  V.  COMMONWEALTH. 


287 


to  kill  referred  to  in  the  answer  of  the  court  ?  They  are  incon- 
sistent and  could  not  exist  ai  the  time.  Both  points  aver  that  the 
pistol  was  tired  under  appreherscJon  of  bodily  harm,  or  a  reason- 
able belief  thereof,  yet  the  ar'^wers  of  the  court  require  the 
defendant  to  prove  that,  because  death  ensued,  he  did  it  in  self- 
defense,  and  if  he  failed  in  this,  the  verdict  against  him  must  be 
murder  in  the  first  degree.  This  certainly  cannot  be  the  law. 
It  niiyht  possibly  be  either  murder  in  the  second  degree  or  man- 
slaugliter,  but  both  of  these  degrees  of  homicide  are  ignored  by 
the  court,  and  the  jury  are  left  to  convict  the  prisoner  of  mur- 
der in  the  first  degree,  or  acquit  him  entirely. 

Jacob  V.  Got  waits,  district  attorney,  and  George  N.  Corson, 
for  the  commonwealth. 

Mr,  JrsTicK  Stekrktt  delivered  the  opinion  of  the  court,  May 
lOtli,  1877.  The  indictment  charged  the  plaintiflE  in  error  and 
his  brother  jointly  with  the  mtirder  of  Isaac  Jaquette.  Separate 
trials  were  awarded,  and  the  case  against  Blasius  Pistorius  hav- 
ing been  taken  up  first,  the  wife  of  the  brother  was  called  as  a 
witness  in  his  behalf  and  was  objected  to  by  the  commonwealth. 
The  objection  was  sustained,  and  the  exclusion  of  the  witness  is 
complained  of.  During  the  argument  before  us,  it  was  stated  by 
counsel  for  the  plaintiff  in  error,  that  John  Pistorius,  the  hus- 
band of  the  witness,  had  been  tried  and  acquitted,  since  the  writ 
of  error  in  this  case  was  taken.  In  view  of  this  fact,  and  inas- 
much as  the  judgment  is  reversed  on  another  ground,  the  ques- 
tion presented  by  this  assignment  of  error  has  become  imma- 
terial, and  it  is  therefore  unnecessary  to  consider  it.  The  trial 
and  acquittal  of  the  husband  has  removed  all  objection  to  the 
competency  of  the  wife. 

The  second,  third  and  fourth  assignments  relate  to  the  explan- 
ations or  qualifications  which  the  court  added  to  their  aflSrmance 
of  the  third,  fourth  and  sixth  points,  submitted  by  one  of  the 
prisoner's  counsel. 

These  points  refer  to  the  same  general  subject,  and  are  each 
based  upon  a  hypothetical  state  of  facts,  which,  if  found  by  the 
jury  to  be  true,  would,  it  is  claimed,  relieve  the  prisoner  from  a 
conviction  of  murder  of  the  first  degree ;  and  the  complaint  is, 
that  while  each  of  them  was  aflSrmed,  an  explanation  was  added 
which  had  a  tendency  to  confuse,  and,  perhaps,  mislead  the  jury ; 
and  thus,  to  some  extent,  deprived  the  defendant  of  the  benefit  of 


n-^ 


!''     U 


hi 


>4 


i 

i 

i 

! 

288 


AMERICAN  CRIMINAL  REPORTS. 


the  affirmance.  The  instruction  asked  in  the  sixth  point  was :  "  If 
tlie  jury  tind  that  the  deceased  approached  the  defendant  in  a 
threatening  manner,  and  the  defendant  had  a  reasonable  belief  of 
bodily  harm,  although  mistaken,  he  cannot  be  convicted  of  mur- 
der of  the  first  degree." 

The  answer  of  the  learned  judge  was :  "  This  is  true,  if  you 
believe  the  prisoner  acted  on  that  apprehension ; "  and,  in  the 
same  sentence  he  added,  "  but  it  is  not  true,  if  you  find,  beyond 
all  reasonable  doubt,  that  he  fired  with  a  willful,  deliberate  and 
premeditated  intent  to  take  life." 

The  point,  as  presented,  was  incomplete,  and  might  have  been 
refused,  but  the  court  thought  proper  to  affirm  it  with  the  (piali- 
fication  contained  in  the  first  clause  of  the  answer,  and  said  to  the 
jury  that  it  was  correct  if  they  found  that  the  prisoner  acted  on 
the  apprehension  of  bodily  harm.  There  can  be  no  reason  to 
complain  of  this  qual'fication,  which,  in  itself,  was  quite  proper. 
The  facts,  then,  necessary  to  be  found  by  the  jury,  in  order  to 
sustain  the  proposition,  as  qualified  and  affirmed  by  the  court, 
were  that  the  deceased  approached  the  prisoner  in  a  threatening 
manner — that  the  latter  had  a  reasonable  belief  that  he  was  in 
danger  of  bodily  harm,  and  that,  acting  on  that  belief  and  appre- 
hension of  danger,  he  fired  the  fatal  shot.  If  they  found  those 
facts  to  be  true,  the  effect  of  the  instruction  would  be  to  relieve 
the  defendant  from  a  conviction  of  murder  of  the  first  degree; 
but,  what  was  added  by  the  court,  in  saying  it  was  not  true  if 
"he  fired  with  a  willful,  deliberate  and  premeditated  intent  to 
take  life,"  was  liable  to  be  misunderstood  by  the  jury.  They 
might  understand  it  to  mean  that  although  they  found  all  the 
facts  embodied  in  the  proi)osition  as  affirmed  by  the  court,  still, 
if  they  found,  in  addition  thereto,  that  the  defendant  intended  to 
kill,  they  should  convict  him  of  murder  of  the  first  degree ;  or, 
at  least,  would  be  justifiable  in  doing  so.  The  proposition,  as 
affirmed,  presented  a  state  of  facts  which,  if  ascertained  to  be 
true  by  the  jury,  excluded  a  conviction  of  murder  of  the  first 
degree,  but  left  them  free  to  find  a  lower  grade  of  homicide,  if 
they  thought  that,  under  the  circumstances  as  they  really  wore, 
or  as  they  reasonably  appeared  to  the  prisoner  to  be,  there  was  no 
occasion  to  take  life  in  order  to  save  his  own,  or  to  avert  grc^at 
bodily  harm ;  but,  being  told  in  the  same  connection,  that  the 
proposition  was  not  true  if  he  intended  to  kill,  the  jury  might 


PISTOKIUS  V.  COMMONWEALTH. 


289 


think,  If  tlioy  found  this  intention,  that  it  was  their  duty  to  con- 
vict of  murder  of  the  first  degree. 

Tiio  an  8 were  to  the  tliird  and  fourth  points  are  not  entirely 
free  from  a  similar  objection. 

The  idea  intended  to  be  conveyed  by  the  learned  judge,  in 
answering  all  these  points,  was  no  doubt  correct,  but,  owing  to 
the  manner  in  which  it  was  expressed  in  the  hurry  of  trial,  the 
jury,  in  our  judgment,  may  have  been  misled  into  the  belief  that 
if  the  prisoner  intended  to  kill,  he  should  be  convicted  of  mur- 
der of  the  first  degree,  notwithstanding  they  were  satisfied  that  he 
was  assaulted,  and  fired  "  under  apprehension  of  bodily  harm," 
or  had  a  reasonable  belief  of  danger,  "  founded  on  the  manner, 
I'cstnrt's  and  appearance  of  the  deceased."  If  he  was  assaulted, 
and  was  actually  in  danger  of  great  bodily  harm,  or  if  it  reason- 
ably appearcid  to  him  that  he  was,  and  the  danger,  either  real  or 
apparent,  >vas  so  great  that  it  could  not  be  averted  without  tak- 
ing the  life  of  his  assailant,  he  would  be  excusable,  under  the 
law  of  self-defense,  in  doing  so,  in  order  to  save  his  own  life  or 
avert  great  bodily  harm.  But,  under  the  state  of  facts  embodied 
in  the  points,  the  entire  accjuittal  of  the  defendant  was  not 
asked.  It  was  not  contended  that  he  was  whoU}'  excusable  on 
the  ground  of  self-defense.  It  was  simply  claimed  that  if  the 
facts  stated  in  the  points  were  found  to  be  true,  he  should  not 
he  convicted  of  murder  of  the  first  degree,  leaving  it  to  the  jury, 
under  the  instruction  of  the  court,  to  find  a  lower  degree  of 
homicide  if  they  thought  the  evidence  justified  it. 

In  what  has  been  said,  we  do  not  wish  to  be  understood  as 
intimating  that,  in  answering  points,  the  court  should  simply 
atlirin  or  negative  them.  Hypothetical  propositions  are  some- 
times presented  to  the  court,  quite  correct  in  themselves,  but  so 
artfully  drawn  that  a  luiked  aftirmance  might  not  enable  the  jury 
to  comprehend  their  bearing.  Others,  again,  are  not  strictly  cor- 
rect, and  require  qualification.  In  such  cases  it  is  the  undoubted 
right,  and  frequently  the  duty,  of  the  court,  in  answering,  to 
give  such  explanations  or  qualifications  as  may  be  necessary  to 
enable  the  jury  to  understand  them.  Sometimes  this  may  bo 
best  done  by  ])resentiiig  to  the  jury  an  alternative  proposition,  or 
BUggosting  to  them,  in  connection  with  the  answer,  another  or 
dilfcrent  theory  or  state  of  facts  arising  <mt  of  the  evidence,  and 
instructing  them  as  to  the  law  and  their  duty,  in  case  they  find 
them  to  be  true. 
Vol-.  II.— 19 


-r 


^  ' 

1 ' 


9\i 


"J 


W 


290 


AMERICAN  CRIMINAL  REPORTS. 


The  remaining  assignments  of  error  are  not  sustained,  and 
tliere  is  notliing  in  any  of  them  requiring  special  notice. 

"With  tlie  exception  of  the  answers  to  the  points  already 
noticed,  the  learned  judge  presented  the  case  very  clearly  and 
fairly  in  his  charge  to  the  jury;  but,  for  the  reat-ons  already 
given,  we  are  of  opinion  that  the  case  should  be  sent  back  for  a 
new  trial. 

The  judgment  of  the  court  of  oyer  and  terminer  is  reversed, 
and  a  venire  /"adds  de  novo  awarded;  and  it  is  ordered  that  the 
record  be  remitted  to  said  court  for  another  trial. 


*\ 


-^^^ 


CaRUOLL     v.    CoMMoNWKAI/rn. 


(84  Pu.  St.,  107.) 


Homicide:   "  Molly  Mafjidrea  " —  Coiifinvnnre  of  trial  after  end  of  term  —  EH- 
dence  of  motive  —  Order  of  proof. 

Where  a  jury  is  sworn  in  a  criminal  case  on  the  last  day  of  term,  the  court 
has  power  to  continue  the  trial  from  day  to  day  after  the  term  until  it  is 
terminated. 

In  a  trial  for  homicide,  any  evidence  which  fairly  tends  to  prove  a  conspiracy 
between  the  persons  to  commit  murder,  and  a  motive  for  the  munlir,  is 
admissible,  altliough  not  tending  directly  to  prove  the  murder  charged,  in 
a  case  where  .such  testimony  tends  to  corroborate  and  render  more  crediljlc 
the  testimony  tending  directly  to  prove  tlie  murder  charged. 

The  order  in  which  evidence  shall  be  given  iswitliin  the  discretion  of  the  trial 
court,  and  evidence  which  is  incom|)etent  when  admitted,  will  not  Ix;  u 
ground  for  reversal,  if  it  is  afterwards  :nadu  competent,  by  its  conueclioii 
with  evidence  given  at  a  later  stage  of  tlie  trial. 

March  13th,  1877.  Before  Aon'kw,  C.  J.,  SnAUHwoon,  Mkk- 
OUR,  Gordon,  Paxson,  Woodward  and  Stekrktt,  J  J. 

Error  to  the  oyer  and  terminer  of  Schuylkill  county.  Of 
January  term,  1877,  No.  12. 

Indictment  of  James  Carroll,  James  Boyle,  Hugh  McGehaii 
and  James  Roarity,  for  the  murder  of  Benjamin  F.  Yost. 

At  about  two  o'clock  of  the  morning  of  July  0th,  1875,  Yost,  a 
policeman  in  the  borough  of  Tamaqna,  Schnylkill  county,  was 
fatally  shot  while  in  the  act  of  extinguishing  a  street  lamp  in  tlio 
western  end  of  Broad  street,  in  said  borough.  While  standinir 
upon  a  ladder,  in  the  act  of  turning  off  the  gas,  ho  was 
npi>roa('lu'<l  by  two  strangons,  who,  after  di.scharging  their  pistols 


u 


CARROLL  V.  COMMONWEALTH. 


291 


1,' 


and  inflicting  upon  liim  a  wound  from  tlic  effects  of  which  he 
soon  after  died,  immediately  fled  in  the  direction  from  wlilch 
thev  came.  The  assassins  were  not  Ivuown  at  tlie  time,  and  tlie 
authorities  were  unaljle  to  obtain  any  evidence  tliat  would  justify 
the  arrest  of  any  one. 

On  Se{)teinber  3d,  1875,  James  Kerrigan,  Michael  Doyle  and 
Edward  Kelly  were  an-ested  and  placed  in  the  Carbon  coutity 
jail,  charged  with  the  killing  of  John  P.  Jones,  at  Lan.sford,  in 
saitl  connty.  The  prisoners  having  denjanded  separate  trials, 
Micliacl  Doyle  was  put  u|ion  trial  at  ^lauch  Chunk,  in  January, 
1870,  and  during  his  trial,  Kerrigan  made  a  confession,  in  which 
he  implicated  Thomas  Duffy,  Hugh  McGehan,  James  Carroll, 
James  Ivoarity  and  James  Boyle,  with  himself,  in  the  murder  of 
Benjamin  F.  Yost.  These  defendants  were  arrested  in  February 
and  confined  in  the  Sclmylkill  county  jail,  charged  witii  the  mur- 
der of  Yost.  DulTy  having  demanded  a  separate  trial,  Carroll, 
Bovie,  ^IcGchan  and  lloarity  were  ])ut  upon  their  trial  in  May, 
187<»,  and  after  the  case  on  the  part  of  the  commonwealth  had 
chjsed,  and  while  the  prisoners  were  on  their  evidence,  one  of 
the  jurors  became  ill  and  after  a  few  days  of  sickness  died. 
The  eleven  jurors  were  discharged.  The  case  against  the  four 
prisoners  was  called  again  for  trial  on  the  Cth  of  July,  1870. 

The  killing  of  Yost  was  not  participated  in  by  all  of  the 
dot'endants,  Itut  it  was  alleged  that  the  act  itself  was  conmiitted 
by  ^rcCiehan  and  JJoyle,  while  Carroll  and  Itoarity  were  charged 
as  accessories  before  the  fact.  Yost  made  a  dying  declaration,  in 
which  he  stated  that  his  assailants  were  unknown  to  him  by 
mime,  but  that  he  had  seen  them  the  evening  previous  to  tho 
Blidoting  in  the  saloon  of  James  Carroll,  one  of  the  tlefendants. 

The  trial  was  held  before  I'kusuinu,  P.  J.,  and  Wamcku,  A. 
L.  J.  When  the  ease  was  called,  the  trial  of  Thomas  Munley, 
f(ir  the  killing  of  Thomas  Sanger,  was  in  ])rogress  in  another 
court  of  oyi'r  an<]  terminer  of  the  county,  and  the  defendants 
(•l)jecte(l  to  the  calling  of  a  jury  at  that  time,  and  the  commence- 
ment of  the  trial  of  their  case  during  the  trial  of  ^lunley,  iiuis- 
niiicli  as  there  had  been  no  order  for  a  separate  court,  and  no 
Bopiuate  renins  for  the  holding  of  separate  courts  for  tho  trial 
of  eases  in  the  oyer  and  terminer,  as  re(juired  by  the  acts  of 
assembly. 

The  court  overruled  tlie  objection,  ami  stated  that  under  the 
acts  of   assembly  ai)plying  to  Schuylkill  county — act  of  18th 


m 


Ml 


ill. 


i:'# 


"•■''-»■*? 

#;'i{.i%i. 


ife 


292 


AJIEIIICAN  CRIMINAL  REPORTS. 


■Jr..'  / 


J'  i 


t'' 


til-: 


t' 


March,  1875,  Pampli.  L.,  25-28,  and  act  of  7tli  of  April,  18TG, 
Pampli.  L.,  19,  the  holding  of  two  courts  at  the  eame  time  was 
legal. 

A  jury  having  been  impaneled  in  the  case  on  Satnnlny,  the 
Stli  day  of  July,  1876,  which  was  the  last  day  of  the  term,  uii 
adjournment  was  had  until  the  Monday  following,  and  froiii  day 
to  day  until  the  13th  of  July,  when  the  trial  eoinnionciiii;.  the 
prisoner  objected  to  proceeding,  on  the  ground  that  the  term  liad 
expired,  and  that  no  precept  had  been  issued  to  hold  a  court  of 
oyer  and  terminer  at  that  time,  and  the  jury  must,  *lierorore,  bo 
discharged.  The  court  overruled  this  objection,  and  the  overrul- 
ing of  this  and  the  foregoing  objection,  constituted  the  liivt 
assignment  of  error. 

On  the  trial,  the  commonwealth  called  James  Kerrigan,  wlut 
had  made  the  confession,  implicating  the  prisoners,  and  admit- 
tedly an  accomplice  in  the  crime,  who  testified  that  he  l<iu'\v  tho 
prisoners,  and  had  known  Yost;  that  DulTy  had  had  a  dilllcuity 
with  Yost,  and  been  beaten  by  him  the  winter  picvions  to  the 
murder;  that  a  short  time  before  the  killing  of  V(»st,  DulTy 
''told  Roarity  that  he  would  give  him  ^10  for  his  trouble  if  he 
would  shoot  Yost,  or  put  him  out  of  the  way,"  and  that  Roaritv 
replied,  "All  right,  I  will,  and  if  1  don't  do  it.  1  will  get  twu 
men  who  will  do  it;"  that  prior  to  this,  a  conversation  was  held 
in  Carroll's  bar-room,  at  whieh  nulfy,  (^arroll  and  witness  were 
present,  in  which  DulTy  said  he  wouhl  get  IMickey  Caniphell 
to  shoot  Yost,  and  Carroll  said,  "  You  let  that  alone,  we  will  jret 
men  who  will  do  that;  Mickey  Campliell  don't  belong  to  the 
soeiety  and  it  may  be  fou.id  out  ;"  that  Roarity  told  witness  lie 
had  Thomas  Midhall  and  Hugh  MeCiehan  picked  out  to  shoot 
Yost;  that  on  the  5th  of  Jidy,  1S75,  three  of  the  prisoners, 
Duffy  and  witness  met  in  the  kitchen  of  Carroll's  house,  Roarilv 
having  been  called  home  by  the  sudden  illness  of  his  wife;  that 
Carroll  sent  witness  to  procure  the  loan  (»f  a  pistol;  that  upon 
inquiry,  DulFy  said,  "I  am  going  to  shoot  Yost  to-night  ;"  that 
either  Royle  or  McCJehan  also  remarked  that,  "  by  God  they  ha^i 
come  three  times  to  do  this  job,  and  they  were  not  going  hack 
until  they  did  it ; "  that  McGehaii  had  Roarity's  pistol,  and  that 
Carroll  gave  Royle  a  single-barreled  pistol  which  he  himself  pfe- 
viously  loadt'd,  remarking,  "that  it  was  a  poor  thing  to  do  a  jol» 
like  that;"  that  witness  eonducteil  Mc(jiehan  and  Hoyle  to  the 
appointed  place,  and  saw  the  killing  of  Yost;  that  both  lired 


Mill    II   'sL 


CARROLL  V.  COMMONWEALTH. 


WB 


shots,  McGehan  firing  first ;  that  as  they  fled  together,  McGehaii 
said,  "  he  had  sliot  Yost,  that  he  knew  he  had  shot  hitn ; "  that 
witness  accompanied  them  a  part  of  the  way  to  Summit  Hill, 
wlioiice  tlioy  came,  and  there  gave  them  directions  as  to  the  course 
tu  pursue  to  reach  that  point ;  that  in  subsequent  conversations 
witli  Bojle  and  McGehan,  they  had  given  him  an  account  of  the 
journey,  and  that  they  had  not  met  any  one  but  "  Bob  Breslin," 
whom  they  had  accosted  and  asked  for  a  drink  of  water.  The 
witness  also  detailed  what  the  prisoners  had  said  with  reference 
to  their  movements  on  the  day  following  the  murder,  and  what 
they  had  said  to  avoid  suspicion,  and  to  explain  their  where- 
abouts the  day  and  night  before  the  murder.  The  common- 
wealth then  proposed  to  prove  by  this  witness,  "  that  there  was 
at  the  (late  of  the  murder  a  secret  or  criminal  association  in  this' 
and  adjoining  counties,  called  the  Ancient  Order  of  Hibernians, 
commonly  known  as  the  '  Molly  Maguires ; '  that  all  the  prisoners 
now  on  trial,  together  with  Thomas  Duflfy  and  the  witness  Ker- 
rigan, were  members  of  the  order ;  that  for  the  purpose  of  taking 
revenge  on  B.  F.  Yost,  for  the  beating  of  Duffy,  tliis  association 
selected  McGehan  and  Boyle  to  murder  Yost,  in  consideration  of 
tlic  fact  that  other  members  of  the  society  who  desired  the  death 
of  Vost  were  to  select  men  to  murder  one  John  P.  Jones,  who 
was  obnoxious  to  that  branch  of  the  association  which  furnished 
the  men  to  kill  Y«jot ;  that  Roarity  was  a  prominent  officer  of 
the  association  and  active  in  the  selection  of  the  men  to  kill 
Yost,  and  that  James  Carroll  was  also  a  prominent  officer  of  the 
association,  and  as  such  aided  and  abetted  in  the  commission  of 
the  murder  of  Yost." 
The  prisoners  objected,  because, 

I.  The  witness  had  already  given  the  origin  of  the  consj)iraey 
which  resulted  in  the  death  of  Yost,  and  the  mode  and  manner 
of  its  execution,  in  which  there  was  no  agency  by  or  reference 
to  any  organization  or  society,  and  the  evidence  proposed  is, 
tlicrefore,  contradictory  of  what  the  witness  has  already  testified 
to. 

*i.  The  testimony  is  irrelevant,  because  it  is  not  proposed  to 
prove  that  the  prisoners  entered  into  the  agreement  made  in  the 
8(»cioty  in  relation  to  the  killing  of  Yost  and  Jones,  or  were 
j)resent  at  the  time  such  agreement  was  made. 

II.  Tiie  evidence  proposed  necessarily  introduces  into  this  case 
an  independent  oifense.     To  corroborate  Kerrigan  several  oifers 


.    i 


1 


294 


AMEHICAN  CRIMINAL  REPORTS. 


Avcre  niiulc  by  the  commonwealth,  the  object  of  which  was  to 
trace  the  possession  and  establish  the  identity  of  the  pistf))  used 
by  Eoarity,  and  thereby  to  confirm  the  statements  of  Ken-iijnn 
made  in  regard  thereto;  to  prove  that  Kerrigan  wns  met  on  the 
ni_:;ht  of  tlie  15th  of  July,  on  his  return  from  Summit  Hill,  l)y 
one  Churchill,  whom  he  testified  he  had  met,  and  to  sustain 
various  other  statements  made  by  him  as  to  his  whereabouts,  at 
times  whereof  he  had  testified,  and  further  to  show  by  the 
mother  of  Robert  Breslin,  that  her  son  Robert  had  returned  to 
the  house  at  or  about  the  time  it  was  alleged  ho  had  met  McGehan 
and  Boyle  on  the  road  to  Summit  Hill. 

These  offers  were  all  objected  to  by  the  prisoners,  on  the 
ground  that  they  did  not  tend  to  connect  the  defendants  with 
the  commission  of  the  crime,  and  that  it  was  not  competent  to 
corroborate  the  testimony  of  an  accomplice  as  to  matters  which 
occurred  subsequent  to  the  murder. 

The  court  overruled  all  these  objections,  and  they  constitute 
the  assignments  of  error  from  four  to  nine  inclusive. 

The  comments  of  the  court  upon  the  character  of  this  testi- 
mony,  and  its  bearing  upon  the  case,  will  be  found  in  the  por- 
tions of  the  charge  of  the  court  hereinafter  given. 

The  commonwealth  then  called  James  jMc Parian,  who  testified 
at  length,  tliat  as  a  detective,  but  in  the  capacity  of  a  private 
person,  he  became  acquainted  with  the  four  prisoners  on  trial, 
and  that  three  of  them,  McGehan,  Carroll  and  Roarity,  confessed 
to  their  participation  in  the  murder  of  Yost,  both  as  prineipals 
and  accessories  before  the  fact,  and  detailed  to  him  the  circiini- 
stances  attending  the  commission  of  the  crime,  an  account  of 
which  the  witness  gave.  His  statement  in  this  regard  sustained 
substantially  that  made  by  Kerrigan.  The  commonwealth  then 
made  the  following  offer  : 

To  prove  by  the  witness  on  the  stand,  James  McJ'arlan.  that 
as  a  detective  he  came  into  Schuylkill  county  to  become  familial' 
with  the  working  of  a  secret  association,  known  generally  in  this 
locality  as  "  Molly  Maguires,"  but  the  real  name  of  which  is  the 
Ancient  Order  of  Hibernians;  that  he  was  initiated  as  a  nu'iiilnr 
of  that  organization  ;  that  Hugh  M^-Gchan,  James  Roarity  and 
James  Carroll,  the  three  prisoners,  whose  declarations  witiie.-.s 
has  testified  to,  were  iueinl»ers  of  tliat  ord(!r  or  association,  known 
to  be  such  to  the  witness  at  tlii!  time  spoken  of,  and  that  they  all 
knew  him  to  bo  a  member,  and  that  it  was  a  practice  in  this 


CARROLL  >:  COM^rON WEALTH. 


:2!)5 


op'iiiiizatioii,  and  known  to  be  snch  to  tlie  above  named  prison- 
ci-s,  for  tliu  members  to  aid  and  assist  each  other  in  the  commis- 
sion of  crimes,  and  in  defeating  detection  and  punishment ;  that 
said  organization  was  a  secret  one,  the  members  of  which  could 
make  themselves  known  to  each  other  by  signs  and  passwords; 
that  the  declarations  of  the  three  prisoners  above  referred  to 
were  made  to  the  witness  by  the  prisoners  as  a  fellow-member  of 
their  organization.  "  All  this  to  be  followed  by  proof  that 
James  Roarity  was  an  officer  of  this  organization,  and  undei'took 
to  furnish  the  men  to  murder  Yost,  and  did  actually  furnish 
tliem,  by  relucting  from  the  members  of  the  organization  the 
prisoner  McGehan  and  one  MuUiall,  the  latter  of  whom  was 
afterwards  siii)stituted  by  James  Boyle."  "  This  was  done  at 
tiic  rcfjuest  of  Thonuis  Dulfy,  the  prisoner  who  had  been  arrested 
by  Yost  for  a  previous  offense,  and  who  had  threatened  to  be 
revenged  on  him  (Yost)  for  the  matter." 

All  this  otter  was, 

"  1.  To  show  the  motives  for  the  commission  of  the  murder; 
and, 

"2.  To  explain  the  relations  existing  between  the  witness  and 
the  three  tirst  above  named  prisoners,  and  why  the  confessions 
and  declarations  already  in  evidence  were  made." 

The  defendants  objected  to  the  offer, 

1.  So  far  as  it  relates  to  and  purposes  to  j)rove  the  exist- 
ence of,  and  membership  of  the  defendants  Carroll,  McGehaii 
and  Roarity  in,  the  organization  known  as  "  Molly  Maguires," 
as  not  material,  and  in  no  way  tending  to  show  the  guilt  of  the 
(lofendants  charged  with  the  killing  of  Yost. 

2.  It  is  not  alleged  in  the  offer  that  the  killing  was  done  by 
the  order,  as  such,  or  in  any  other  capacity  of  those  concerned 
in  it. 

3.  It  is  not  alleged  that  Duffy  an<l  r»oyle  are  members  of  the 
society  named,  and,  therefore,  the  oiler  to  prove  the  existence  of 
the  association,  and  its  relations  to  the  j)arties  named — Roarity, 
(Carroll  and  Mc(iehau — is  not  material  upon  the  subject  of  the 
killing  as  an  act  of  revenge  for  injuries  done  bv  the  deceased  to 
DulTy.  '  ■ 

4.  It  is  not  material  or  relevant  for  the  conunoMwealth  to  givo 
eviilencc  of  the  means  employed  to  obtain  confessions  from  th(» 
jtrisoners. 

5.  The  threats  of  Dully,  who  was  not  ii  member  of  this  asso- 


■; 


296 


AMEKICAN  CRTIMINAL  UKPORTS. 


■4\h 


i  i 


ih. 


If 

IV' 


i 

i 


ciatioii,  cannot,  and  do  not,  appear  to  have  any  relation  to,  nor 
connection  witli,  the  association  mentioned,  and  such  association 
is  not  material  upon  tlie  subject  of  motive,  as  set  out  in  the  same. 

6.  The  testimony  is  proposed  to  aflEect  such  of  the  defendiitits 
as  are  not  claimed  to  be  members  thereof,  and  as  such  is  irrelevant. 

7.  Tlie  offer  is  irrelevant,  and  not  material  to  the  charges  con- 
tained in  the  indictments, 

8.  Tlie  commonwealth  having  produced  upon  the  stand  James 
Kerrigan,  and  proved  by  him  the  origin  of  the  conspiracy  wliieli 
resulted  in  the  death  of  B.  F.  Yost,  and  that  the  persons  con- 
nected therewith  acted  upon  their  individual  responsibility,  and 
not  as  members  of  any  organization,  the  evidence  now  proposed 
is  a  contradiction  of  the  evidence  of  the  said  Kerrigan,  and, 
therefore,  incompetent. 

9.  That  portion  of  the  commonwealth's  offer  which  relates  to 
the  proof  of  the  practices  of  the  Ancient  Order  of  Hibernians, 
and  the  membership  of  the  prisoners  in  that  organization,  does 
not  propose  to  prove  that  the  killing  of  Yost  was  the  act  of  the 
association,  or  that  they  perpetrated  the  crime  bj'  reason  of  their 
membership  of  said  association,  or  that  the  ])ractices  of  said 
association  refer  to  the  particular  case  now  on  trial. 

The  court  overruled  these  objections,  which  was  the  third 
assignment  of  error. 

The  witness  then  proceeded  to  give  in  detail  an  acconiit  of  the 
organization,  grips,  passwords  and  practices  of  the  order  known 
as  the  Ancient  Hibernians,  or  "  ]\rul!y  Magnires,"  showing  that 
it  was  a  secret  organization,  having  its  ramifications  in  England, 
Ireland  and  Scotland,  and  the  varions  states  of  the  I'liion,  snh- 
divided  into  state,  county  and  district  organizations,  with  their 
several  otHcers,  that  of  the  district  being  termed  a  biMly-inaster ; 
that  the  signs  and  passwords  called  "goods,"  werc^  traiisniitttd 
regularly  from  the  head  of  the  organization  in  Ireland  to  the 
various  subdivisions  through  dclegati's  at  conventions;  that  it  was 
the  practice  of  the  organization  to  assist  in  the  coniniission  of 
crimes,  the  design  and  execution  of  which  were,  in  the  language 
of  the  witness,  as  follows: 

"  As  a  general  thing,  when  an  outrage  was  to  bo  comnn'tted, 
whether  it  was  to  kill  a  man,  or  heat  him  or  burn  his  placi'  down, 
or  anything  in  that  ri'spect,  the  parties  wh(»  wanted  it  done  tohl 
the  division  master  they  wanted  this  tiling  done.  The  division 
master  called  the  men  togi'ther-  j)robably  it  woidd  not  be  a  full 


■  It;!'  ; 
If 

1 'I 


CARROLL  V.  COMMONWEALTH. 


207 


nicctiiii^ — to  talk  tlic  matter  over,  and  see  whether  it  was  right 
tliat  tin's  man  should  he  killed,  or  this  place  burned,  or  this  man 
sliuuUl  l)e  lieked,  as  it  might  be.  Then  the  division  made  a  call 
upon  some  other  division  master,  probably  not  living  in  the  same 
county.  There  was  no  difference  about  that,  but  the  men  that 
wore  to  perform  this  act,  or  commit  this  outrage,  had  to  be  men 
that  were  unknown,  as  a  general  rule,  to  the  parties  upon  whom 
the  outrage  was  to  be  committed.  This  division  master,  in  turn, 
pledged  himself  to  this  other  division  master,  upon  whom  he 
made  the  call,  to  furnish  men  if  he  wanted  a  favor  in  that  line 
of  business  at  any  time  that  he  would  ask  him  to  furnish  men  to 
do  it;  consequently  the  men  were  furnished  and  the  job  was 
done. 

"  If  any  of  the  members  were  arrested  in  the  commission  of 
any  crime,  the  practice  of  the  organization  was  to  raise  a  fund, 
and  to  retain  the  best  legal  talent  they  could  possibly  get,  and 
tiie  next  practice  was  the  '  alibi.''  Any  members  who  refused  to 
come  forward  and  sustain  the  alibi  when  called  upon  were 
expelled,  and  just  as  like  as  not  would  be  killed." 

The  portions  of  the  charge  and  answers  to  points  following, 
constituted  the  assignments  of  error  from  the  tenth  to  the  fif- 
teenth inclusive,  and  are  given  at  length,  in  view  of  the  fact  that 
it  WHS  strenuously  contended,  on  behalf  of  the  prisoners,  that 
the  testimony  therein  commented  upon  was  not  such  evidence  as 
should  be  atlmitted  to  corroborate  the  testimony  of  an  accomplice, 

"  |(i.  It  is  a  rule  of  evidence  that  the  degree  of  credit  which 
ouirht  to  be  given  to  the  testimony  of  an  accomplice  is  a  matter 
exclusively  within  the  province  of  the  jury.  Such  testimony 
shoidd  be  weighed  with  great  caution.  The  jury  niay,  if  they 
see  proper,  act  ujxm  the  evidence  of  an  accomplice  without  any 
corroboration  of  his  statements.  It  is  usual  for  courts  to  advise 
juries  not  to  convict  a  defendant  of  fel(»iiy  on  the  testimony  of 
ati  aceomplice  alone,  and  without  corroboration,  and  we  so  advise 
yuii  in  this  case.  You  will  carefully  consider  the  other  evidence 
ill  the  case,  and  determine  how  far  it  conlirms  Kerrigan's  state- 
ments. The  rule  on  this  subject  is  thus  laid  down  in  'Joy  on 
the  Evidence  of  Accomplices,'  pp.  OS,  l(!»,  as  the  result  of  an 
eliihorati!  e.xaiiiiiiiition  of  the  authorities.  The  confirmation 
ought  to  be  in  sucdi  and  so  many  parts  of  the  accomplice's  narra- 
tivt'  as  nuiy  reasonably  satisfy  the  jury  that  he  is  ti'lling  the  truth, 
witho\it  restricting  the  conliriiiation  to  any  j)articular  points,  and 


298 


A^IEUICAN  CKLMINAL  REPOIITS. 


.1 


W^ 


leaving  the  effect  of  sueli  confirtnation  (vvhieli  may  vary  in  its 
effect  according  to  tlie  nature  and  circumstances  of  tlie  particu- 
lar case)  to  tlie  consideration  of  the  jury,  aided  in  that  consid- 
eration hy  the  obsei'vations  of  the  judge. 

"  11.  He,  KcrrigaJi,  then  testifies  to  meeting  there   James 
Boyle,  Thomas  Duffy,  Hugh  McGehan  and  Janles  Carroll,  and 
says  that  these  parties  were  in  the  kitchen,  and  he  describes  tlio 
different  positions  they  occupied  in  the  kitchen,  and  states  fur- 
ther, they  proceeded  to  the  porch,  and  that  Carroll  came  out  and 
went  up  the  street,  and  coming  back,  said,  '  I  could  not  get  none,' 
and  said  he  had  been  to  John  Ilerron's  saloon  and  could  not  get 
none.     Kerrigan  testifies  that  this  had  reference  to  the  procuriiiif 
of  a  revolver,  and  that  Carroll  then  gave  him  twenty-five  cents 
.and  told  him  to  go  over  to  Patrick  Nolan's  and  ask  for  tlie  loan 
of  a  revolver  for  a  man  going  to  Summit  Hill  or  Maueh  Cliiink. 
Kerrigan  states  that  he  went  over  to  oS'olan's  and  found  nobody 
there  but  Xolan  and  his  wife,  and  a  man  named  Patrick  Cole- 
man.    Kerriyan  called  Nolan  into  a  side  room  and  asked  him  i'or 
a  revolver,  and  Nolan  said  he  had  none.     He  states  that  tlieu 
they  left  this  side  room,  and  he  treated  the  party,  including  Cole- 
man, and  there  sjjent  the  twenty-five  cents  which  had  been  given 
him  by  Carroll,  and  returned  to  Carroll's  and  found  irc(nli;in. 
Duffy  and  Boyle  on  the  i^tooj),  and  he  asked   them  what  tliev 
wanted,  atid  Duffy  said,  '  Fm  going  to  have  him  (Yost)  to-iii:ilit.' 
The  witness  then  says  that  he  romonstrated  with  liim  against  the 
killing  of  Yost,  as  he  had  had  a  dilHculty  witli  McCari'on  before, 
and  he  might  be  blamed  for  the  murder.   He  then  says  tliat  either 
Me(iehan  or  Boyle,  and  he  cannot  recollect  which,  spoke  up  and 
declared  that  he  had  come  there  three  times  to  do  this  job,  and 
they  were  not  going  back  till  they  did  it.     lie  states  that  he  saw 
McOehan  in  possession  of  Jloarity's  pistol;  he  states  that  there 
was  a  wrangle  about  the  pistol,  and  that   M('(i(diati  said  he  \v;i> 
all  right,  that  he  had  lioarity's  pistol,  and  In;  pulled  it  out,  and 
the  witness  knew  the  j)istol ;  that  then  Carroll  went  into  the  bar- 
room, went  behind  the  counter,  opened  a  drawer,  took  from  it  a 
little  single-barreled  pistol,  a  breeeh-loading  one-shooter,  ami  he 
there  saw  Carroll  put  in  tlu'  bullet  and  hand  the  j)is1ol  to  IJov  le, 
saying,  at  the  same  time,  that  it  was  a  })oor  thing  I'or  su(di  a  job, 
and  that  I'oyle  put  it  in  his  pocket. 

"  This  is  the  most  important  e\  iilence  in  connection  with  this 
case,  and  it  is  your  duty  to  scan  it  carefully,  and  to  see  how  far 


mmamm 


'7  m  its 
piii'ticu- 
consid- 


c;arroll  v.  commonwealth. 


2m 


it  is  corroborated  by  tlie  other  evidence.  Kerrigan  does  locate 
Roaritv  there  at  this  time,  iiud  the  other  testimoDj  in  the  case  is 
tliat  Roarity  was  sick  that  afternoon.  To  contradict  tliis  testi- 
mony, Mrs.  Catherine  O'Donnell  was  called  by  the  defense.  She 
is  the  mother  of  Mrs.  Carroll,  and  she  testified  that  she  was  at 
Carroll's  from  six  to  twelve  o'clock  on  the  night  of  the  5th  of 
July,  1875;  that  she  was  in  the  kitchen  there  all  the  time,  and 
that  these  parties  were  not  there,  as  testified  by  Kerrigan.  She 
states  that  she  saw  Edward  Ilerron  there,  and  he  testifies  that  he 
was  there  during  part  of  this  time,  and  went  into  the  kitchen  for 
a  drink  of  water,  and  that  he  saw  none  of  these  parties  there. 
There  is  coiToboration  of  this  statement  in  the  testimony  of 
Patrick  Nolan,  and  there  is  a  similarity  of  statement  between 
Nolan  and  Kerrigan  in  every  particular  except  one.  Nolan  tes- 
tified that  Kerrigan  came  to  his  house,  rapped  at  the  door,  and 
that  the  door  was  opened  by  his  wife,  and  Kerrigan  came  into 
the  bar-room,  where  there  was  no  person  but  himself,  Nolan,  and 
his  wife  and  Patrick  Coleman ;  that  Kerrigan  tapped  him  on 
the  shoulder,  and  took  him  into  another  room,  and  there  asked 
for  the  loan  of  a  revolver  to  protect  a  man  going  to  Summit 
Hill  or  j\[auch  Chunk,  one  of  the  two  jilaces ;  that  he  told  Ker- 
rigan he  had  none,  and  that  Kerrigan  then  proposed  to  treat,  and 
produced  the  twenty-five  cents,  and  that  he,  Kerrigan  and  Nolan 
ilratdi.  Nolan  alleges  that  he  did  not  receive  any  money  from 
Kerrigan,  but  that  Kerrigan  threw  the  money  on  the  counter 
and  he  pushed  it  l)ack  to  him.  Whether  Nolan  took  the 
money  or  not  is  the  only  discrepancy  between  his  statement  and 
Kerrigan's  as  to  that  part  of  the  testimony.  Kerrigan  alleges 
that  he  spent  the  money  there,  and  Nolan  alleges  that  he  declined 
to  receive  it.  This,  as  far  as  we  now  recollect,  is  the  corrobora- 
tion of  Kerrigan,  and  the  contradiction  of  his  testimony  in  rela- 
tion to  this  conversation.  This  evidence  is  important  as  showing 
the  connection  of  Carroll,  at  least,  with  this  transaction  in  the 
preparation  they  had  made  lor  the  killing  of  Yost,  and  showing, 
if  you  believe  it,  that  he  tried  to  procure  a  pistol,  and  failing  to 
do  so,  furnished  ]}oyle  with  the  one-shooter,  which  he  said  was 
not  sutlicient  for  the  j)urpose. 

"  I'J.  Kerrigan  testifies  to  other  jioints,  in  which  he  is  corrob- 
oriited  by  other  witnesses,  lie  testilies  that  I'arney  McCarron 
tired  two  shots  after  the  men  as  they  ran  in  the  direction  of  the 
cemetery,  and  that  ^[cCiehan  fired  a  slidt  in  return.     Tliis  is  cor- 


1 


sm 


AMERICAN  CRIMINAL  REPORTS. 


hi 

u 


^^■1 


•:  * 


rol»orate(l  by  the  testimony  of  Burney  McCarroii,  iuul  ]iv  tlie 
testimony  of  Yost,  and  other  witnesses.  One  witness  stateil  tlmt 
four  shots  were  tired,  and  others  stated  that  they  hi'ard  mure 
than  two.  The  testimony  of  Kerrigan,  Yost  and  M((,'aiioii 
shows  tliat  tiiere  were  about  five  shots  fired  at  that  time,  Kor- 
ri»ati  tlien  testifies  to  a  conversation  that  lie  had  with  McClt'liiui 
immediately  after  this  shooting  took  place.  He  states  that  lie 
i^aid  to  McGehan,  '  I  know  that  you  shot  Yost,  and  he  was  not 
such  a  bad  fellow.  Barney  McCarron  is  ten  times  worse.' 
McGehan  said,  '  I  don't  ask  better  sport  than  to  put  such  men 
out  of  the  way,  but  I  don't  like  to  draw  an  Irishman's  blootl' 
McGehan  said  he  did  not  know  whether  Yost  would  die  or  not, 
but  ho  knew  that  he  shot  him.  The  witness,  in  giving  his  testi- 
mony, then  comes  down  to  the  1st  of  September,  1875,  in  whicli 
he  alleges  a  conversation  with  McGehan,  in  which  McGehan 
said  they  got  home  all  right,  and  said  he  had  told  Doyle  and  lu^llcy 
that  the  road  they  took  would  be  a  good  road  for  them  to  take 
when  they  shot  Jones ;  that  they  did  not  meet  iuiybody  but 
Robert  Breslin,  and  he  was  a  dirty  fellow,  who  had  tried  to  get 
the  men  to  work  for  the  company,  and  he  was  afraid  that  IJoh 
would  srpieal  on  them.  Then  he  went  on  to  state  to  Kerri:;aii 
all  the  details  of  a  conversation  tliat  par^sed  between  them  ami 
Breslin  ;  that  they  asked  Breslin  for  a  drink,  and  Breslin  said 
that  he  ha<l  no  water  there,  but  if  they  would  go  to  the  house 
they  could  get  some.  McGehan  said  they  told  Breslin  they  had 
no  time.  Then  Breslin  asked  them  where  they  had  been  and 
what  they  were  doing  there  at  that  time  in  the  morning,  ami 
^[cGehan  said  he  and  Boyle  had  been  to  a  ball  at  Mau(di  (dniid<, 
and  had  got  lost,  and  did  not  know  where  they  were  till  they  got 
there, 

"  The  statement  alleged  to  have  been  made  by  McGidian  to 
Kerrigan  is  corroborated  by  the  evidence  of  Robert  I'resliti, 
whose  testimony  on  this  point  is  very  important.  On  this  point 
you  will  judge  how  much  Kerrigan  is  corroborated  by  what 
Breslin  testified.  You  have  heard  the  argument  of  the  couiisc  1 
upon  this  subject,  and  what  Wiis  said  in  reference  to  Kerrigan's 
(dttaining  information.  There  is  no  evidence  that  he  got  it  from 
Ureslin,  and  you  have  heard  the  argument  as  to  how  he  did  get 
ir.  if  he  did  not  get  it  from  McGehan.  If  it  be  trui;  that, 
McGehan  made  this   statement  to  Kerrigan,   then    Mc({ehan's 


CARROLL  V.  COMMONWEALTH. 


301 


statement  and  the  testimony  of  Breslin  correspond  In  every  par- 
ticular, as  fai-  as  we  can  see. 

"Kerrigan  also  testifies  that  on  this  occasion,  on  Sanday,  the 
I4tli  or  15th  of  July,  he  was  in  Alex.  Campbell's  house,  and  that 
there  Roarity  gave  him  that  pistol  for  company  on  the  road  home. 
This  was  just  after  he  liad  met  Boyle  at  Campbell's,  and  he  started 
for  home  about  seven  or  eight  o'clock  in  the  evening,  and  he 
testified  that  on  the  road  home  he  met  Churchill  and  McLaughlin, 
and  that  he  had  possession  of  the  pistol  all  that  time,  for  five  or 
six  days.  It  is  claimed,  on  the  part  of  the  commonwealth,  that 
Kerrigan  is  corroborated  here  by  the  evidence  of  Churchill. 
Clinrchill,  who  is  a  mining  boss,  testified  that  on  that  day,  the 
the  lltli  or  15th  of  July,  as  nearly  as  he  can  fix  it,  lie  was  in  a 
Iiiiggy  in  company  with  McLaughlin,  driving  from  Tairiaqua 
towards  his  home,  and  that  he  met  Kerrigan,  whom  he  knew 
well,  because  Kerrigan  had  been  in  his  employ,  going  on  foot  in 
the  direction  of  Tamaqua.  Churchill  testifies  further,  that  he 
had  a  conversation  witli  him,  and  detailed  to  you  what  took  place 
at  that  time.  It  is  claimed  by  tlic  counsel  that  Kerrigan's  state- 
ment is  corroborated  by  the  statejuent  of  Cliurchill. 

"13.  It  is  claimed,  also,  that  there  are  other  corroborations  of 
this  statement  of  Kerrigati.  IIo  tells  you  he  came  home  from 
work  at  six  o'clock,  about  a  week  later  than  this,  and  that  he  found 
at  liis  house  James  McKenna  (or  ^fcParhui)  and  Patrick  McNei- 
lls ;  that  he  washed,  and  all  took  si!i)per  together,  and  that  on 
that  occasion  he  gave  this  Roarity  i)i.stol,  as  it  is  called,  to 
McXellis,  for  the  purpose  of  having  it  delivered  by  McXellis  to 
Roarity,  and  he  testifies  that  McKenna  at  that  tinie  held  the 
])istol  in  his  hands  and  made  some  remarks  about  it.  It  is 
allogcd  that  in  tliis  he  is  corroI)orated  by  McParlan,  who  testilics 
tliat  he  was  at  Kerrigan's  house,  I  think,  on  the  27th  of  July, 
and  that  he  did  take  supper  there,  and  that  lae  pistol  'v.io  |>io- 
ducL'd  at  the  time  by  Kerrigan,  and  that  he  saw  Kerrigan  give  it 
to  McNellis  to  be  delivered  to  Roarity,  and  that  it  was  there  that 
McParlan  came  to  know  this  pistol. 

"Kerrigan  states  that  on  the  1st  of  September  he  was  present 
at  McCTchan's  saloon,  when  Aleck  Campbell,  Michael  Doyle, 
Edward  Kelly,  James  Boyle  and  Hugh  McGehan  were  there ; 
that  McGehan  oiled  the  pistols,  and  that  one  of  the  cartridges 
was  too  long,  and  stuck  out  of  the  chamber,  so  that  the  chamber 
would  not  lit  into  the  revolver,  and  that  he  took  the  chamber 


^11  ■ 


■'■i  .' 


"1 


"T?? 


wrr 


302 


AMERICAN  CRIMINAL  REPORTS. 


IP  ! 

n 


out,  struck  the  cap  witli  his  knife  and  the  cartridge  exploded, 
.vkI  the  bullet  -went  into  the  counter.  He  says  tli.it  a  man  named 
Aubrey  came  in  while  they  were  there.  It  is  alleged  liy  the 
commonwealth  that  in  this  statement  Kerrigan  is  corroborated 
by  the  testimony  of  Charles  Walton  and  J.  C.  Williams,  who 
have  produced  here  a  part  of  the  counter,  showing  the  liolo  in 
which  this  bullet  penetrated. 

"  Kerrigan  states  that  he  next  saw  that  pistol  in  Aleck  Camp- 
bell's bar-room,  where  McGehan  fetched  the  men  to  shoot  Joi.es, 
between  six  and  seven  o'clock  in  the  evening,  aTid  that  there  was  no 
one  there  but  Kelly,  Campbell,  McGehan,  Duyle  and  hinist'If, 
but  that  a  man  by  the  name  of  Goslee  and  a  man  by  the  name 
of  Condon  came  into  the  bar-room,  and  that  Condon  had  a  vjmt 
of  arms  in  India  ink  upon  one  of  his  arms,  and  showed  it.  lie 
states  that  they  had  some  drinks  there  with  Goslee,  and  so  Imd 
Doyle  and  Kelly,  and  that  he  next  saw  the  pistols  at  TamatjUii, 
at  the  spring,  after  the  killing  of  John  P.  Jones,  when  Dovle 
and  Kelly  were  arrested  for  that  murder  along  with  Kenigaii. 
It  is  alleged,  on  the  part  of  the  commonwealth,  that  Kerrigan  is 
corroborated  in  this  part  of  his  statement  by  the  testimony  of 
Goslee.  It  is  in  evidence  that  Goslee  was  present  at  Campbt-irs 
at  this  time,  and  Goslee  testifies  that  Kerrigan  was  there,  and 
Doyle  was  there  with  three  or  four  men,  and  that  he,  Goslee, 
had  an  argument  with  Condon,  and  that  Condon  rolled  up  his 
sleeve  and  showed  the  India  ink  marks  cm  his  arm,  a  statement 
which  goes  to  corroborate  that  which  was  made  by  Kerrigan  as  to 
Goslee's  and  Condon's  being  there,  and  the  exhibition  by  Condon 
of  the  marks  upon  his  arm.  There  is  evidence  called  on  the 
part  of  the  defense  to  contradict  this  statement  of  Kerrigan. 

"  The  evidence  of  Kerrigan  is  very  important  in  this  case.  If 
you  believe  his  statements,  it  will  not  be,  perhaps,  too  nundi  to 
say  that  they  are  sufficient  to  convict  all  these  defendants.  There- 
fore, you  should  scan  it  closely  and  determine  how  far  he  is  cor- 
roborated in  material  parts  of  it,  and  how  far  he  is  contradicted. 
Wo  have  read  the  rule  of  law  as  to  the  extent  of  the  corrobora- 
tion required  on  the  part  of  an  accomplice,  in  order  tliat  a  jury 
may  give  him  credence." 

14.  The  defendants'  second  point  was,  "  That  under  the  evi- 
dence in  this  case,  James  Carroll  and  James  Roarity  cannot  bo 
convicted  as  they  are  charged  in  this  bill  of  indictment,  as  direct 


:WF 


CAUItUJ.L  c.  t•OMMO^^Vl;ALTlI. 


303 


principals,  ami  uinlei'  tlio  tcstiiiKtiiy,  if  guilty  of  any  ofTuii.-e,  it 
is  that  of  ac'ci'ssoi'ieri  before  tlie  fact  to  the  felony." 

The  court  said  :  "  AV^e  refuse  to  answer  this  as  requested.  If 
you  find,  from  this  evidence,  that  James  Carroll  and  Iloarity 
couiisclod  or  aided  or  abetted  the  murder  of  Yost,  that  althougli 
thov  were  not  actually  present  when  the  crime  was  committed, 
thcv  would  be  e(]ually  guilty  with  McGehan,  if  you  believe  that 
tlicy  actually  committed  the  offense." 

15.  The  defendants'  fourth  point  was,  "  That  tlie  jury  would 
not  be  justified  in  finding  a  verdict  against  the  defendants  upon 
the  testimony  of  James  Kerrigan,  an  accomplice  in  the  murder 
of  B.  F.  Yost,  unless  liis  testimony  is  corroborated  in  its  material 
i)arts,  which  connects  the  prisoners  with  the  killing  of  Yost. 
That  a  corroboration  of  Keri-igan  in  such  collateral  matters  as 
may  be  consistent  with  the  innocence  of  the  prisoners,  is  no  legal 
corroboration,  and  is  insufficient." 

Answer.  "  AVe  say  to  j'ou  that  the  rule  of  law  is,  that  a  jury 
may  convict  on  the  evidence  of  an  accomplice  alone,  if  they 
believe  it;  but  it  is  usual  for  the  courts  to  say  to  tlie  jury  that 
they  should  not  do  it,  and  that  they  should  have  corroboration  of 
his  testimony  before  they  wouhl  convict.  We  here  say  to  you 
now,  while  it  is  the  rule  of  law  that  a  jury  may  c(»uviet  on  the 
evidence  of  an  accomplice  alone,  that  you  ought  not  to  convict 
upon  the  uncorroborated  testimony  of  James  l^errigau  in  this 
case,  as  he  is  a  confessed  accomplice,  and  it  will  be  your  duty  to 
examine  his  testimony,  and  see  how  far  it  is  corroborated,  and  in 
-order  to  determine  what  credence  you  will  give  to  it.  It  should 
be  such  corroboration  as  will  satisfy  your  minds  of  the  truth  of 
what  he  has  stated,  as  we  have  already  instructed  you  in  the 
},'eMeral  charge  (see  portion  of  general  charge  under  assignment 
10,  ante,  page  113),  to  which  we  refer  in  connection  with  the 
answer  to  this  point." 

The  jury  brought  in  a  verdict  of  murder  in  the  first  degree, 
and  the  ,  risoners  were  all  sentenced  to  be  hanged.  They  then 
to(»k  this  writ,  and  the  assignments  of  error,  among  others,  were 
those  heretofore  noted,  and  ae  they  are  respectively  numbered. 

Lin  Bartholomew  and  John  W.  lij/on,  for  plaintiffs  in  error. 

The  right  to  hold  a  jury  after  the  expiration  of  the  term  seems 
to  be  founded  in  necessity,  and  to  prevent  a  failure  of  justice ; 
but  no  case  has  ever  gone  so  far  as  to  authorize  a  court  to  impanel 
a  jury,  or  a  number  of  juries,  and  keep  them  waiting  until 


•        f 


ty 


m 


o04 


AMEIUUAN  CRIMINAL  REP01iT8. 


\m 


recjiiired.  A  jury  removed  from  the  care  and  vigilance  of  the 
court  may  be  subject  to  influences  illy  calculated  to  promote  the 
(;ause  of  justice.  If  one  jury  may  be  selected  under  such  cir- 
cumstances, others  may  be,  and  in  important  trials,  involving 
life  and  liberty,  the  prisoner  may  be  deprived  of  the  beneiit  of 
the  regular  panel  from  which  to  select  a  jury,  and  be  obliged,  as 
J'.ere,  to  select  from  talesmen,  and  the  safeguard  i)rovided  for 
him  thus  destroyed.  See  Ilorton  and  Hell  v.  Miller,  2 
Wright,  270. 

Before  the  offer  contained  in  the  second  assignmetit  was  made, 
the  witness  Kerrigan  had  testified  very  fully  as  to  the  origin  and 
extent  of  the  arrangement  to  kill  Yost,  and  had  shown  that  the 
society  known  as  the  Ancient  Order  of  Hibernians,  as  such,  had 
nothing  to  do  with  it.  The  offer  was  to  show  the  existence  of 
this  order  in  Schuylkill  and  other  counties,  and  that  as  such  an 
arrangement  was  made  to  kill  Yost  and  John  P.  Jones.  It  was 
not  proposed  to  show  the  presence  of  either  of  defendants  at 
any  meeting  at  which  the  subject  was  agreed  upon,  or  that  either 
knew  of  any  such  arrangement.  While  it  may  be  conceded  that 
a  party  joining  a  conspiracy  at  any  stage  before  its  completion, 
is  responsible  as  a  co-conspirator,  it  must  be  shown  that  he  joined 
it,  knowing  its  character  and  i)urpose,  before  he  can  be  bound 
by  the  acts  and  declarations  of  others.  Although  the  offer  c(»n- 
nects  the  prisoners  with  the  killing  of  Yost,  it  does  not  even 
allege  that  either  knew  of  or  had  anything  to  do  with  the  killing 
iA  Jones. 

The  third  assigmnent  of  error,  inter  alia,  proposes  to  show 
that  it  was  a  practice  in  the  organization  known  as  Ancient 
Order  of  Hibernians,  and  by  the  persons  known  to  be  such,  for 
the  members  to  aid  and  assist  each  other  in  the  commission  of 
crimes,  and  in  defeating  detection  and  punishment.  While  the 
ostensiiile  purj)ose  of  this  offer  wsis  to  show  the  motive  for  the 
commission  of  the  murder,  and  the  relations  between  the  witness 
and  prisoners,  the  real  purpose,  if  regarded  according  to  the 
effect  of  evidence,  was  to  create  prejudice  in  the  minds  of  jurors 
already  excited  by  systematic  efforts  to  that  end.  The  door  was 
thrown  wide  open  by  tlio  offer  to  show  a  general  practice  to  aid 
and  assist  in  the  couimission  of  crimes,  and  in  the  obstruction  of 
justice,  without  one  single  allegation  that  either  had  anything  to 
do  with  the  offense  tlicn  being  tried.  If  a  man  bo  convicted 
upon  the  general  principle  that  he  is  associated  with  those  who 


a] 


tl 
si 


s 


g^ 


CARROLL  V.  COMMONWEALTH. 


305 


arc  accustomed  to  commit  crime,  this  evidence  was  competent, 
but  if  it  be  still  a  lej^al  truth  that  a  party  shall  be  informed  of 
the  nature  of  the  accusation  against  him,  and  that  the  evidence 
shall  be  cuntined  to  the  support  of  some  specific  charge,  this 
offer  was  a  most  violent  outrage  upon  the  rights  of  these  defend- 
ants. The  limitation  put  upon  the  admiasion  of  this  kind  of 
evidence  is  fully  stated  in  Shaffner  v.  ComtnonwealtJi,  22  P.  F. 
Smith,  00. 

The  commonwealth  offered  what  they  called  corroborative 
evidence  of  the  testimony  of  Kerngan,  wliich  is  chiefly  embraced 
in  the  propositions  contained  in  the  assignments  from  four  to 
tifteuii,  oxclui^ivo  of  the  ninth.  Some  of  these  corroboi''i'ang  cir- 
cuuistanees  to  which  importance  is  attached,  relate  to  acts  of 
Kerrigan  which  transpired  some  weeks  after  the  killing  of  Yost, 
and  were  either  of  a  private  and  lawful  character,  or  connected 
with  the  killing  of  Jones.  The  commonwealth  corroborates  the 
witness  upon  points  which  are  not  in  dispute,  and  which  do  not 
add  one  scintilla  to  the  credit  of  the  witness,  and  thence  deduces 
the  result,  that,  us  he  has  told  the  truth  about  himself,  therefore  he 
has  told  the  ti'uth  about  the  prisonei's.  Unless  the  law  raises  the 
legal  ])resumption  from  such  premises,  the  court  was  in  error. 
The  doctrine  held  by  the  court  simply  amounts  to  this,  that  if 
an  accomplice  in  crime,  who  testifies  to  his  own  and  the  crimi- 
nality of  others,  can  bring  to  the  stand  some  witness  who  can  cor- 
roborate the  fact  of  the  witness's  guilt,  the  accom})licc  is  entitled 
to  full  credit.  Judged  as  the  law  judges  hunum  motives  by  human 
actions,  an  accouii)lice  in  a  high  felony  is  unworthy  of  credit,  and 
he  gains  no  title  to  credit  by  evidence  which  simply  tetids  to 
show  his  own  guilt.  Such  is  the  drift  of  modern  authorities  : 
Hex  V.  Addis,  (I  C.  and  P.,  3SS ;  Hex  v.  Wilken,  1 1d.,  271; 
licx  V.  Mon'<:s\  Id.,  270  ;  Hex  v.  Wd/s,  M.  and  M.,  320 ;  lioj. 
V.  Farhr,  8  C.  and  P.,  loO  ;  Hey.  v.  DyJfe,  Id.,  201. 

The  ninth  assignment  raises  the  question  whether  a  witness 
whose  credit  is  not  attacked  by  the  cross-examination,  or  other- 
wise, can  be  e(»rroborat«d  by  the  party  calling  him  in  chief,  in 
the  manner  sought  to  bo  done  in  this  case.  In  support  of  the 
position  that  the  court  erred  in  admitting  Mrs.  Breslin's  evidence, 
relVrenco  is  made  to  tho  following  cases:  Cfalg  v.  Cniitj,  5 
Kawle,  91 ;  1  (rreeiil.  Evid.,  409;  Commonwealth  v.  WiLson,  1 
Gray,  340;  IMs/ierv.  Ale rcha ids'  Ins.  Co.,  11  Mete.,  19!),  200. 

O'eovfje   li.  Raecher,   district   attorney,   Guy  E.   Farqiihar, 
Vol,.  II.— 20 


i  i' 


,  ! 


if ',         ! 

■.',.■':"■ 

)■ 

;■■; 

1 

i     1 
1 

V' 

*« 

}i' 

1- 

<i 

< 

306 


AMERICAN  CRIMINAL  REPORTS. 


FranJdin  B.  Gowen,  Charles  Albright  and  F.   W.  ITughes,  for 

the  coiiunonwealtli. 

While  the  two  cases  were  tried  in  the  oyer  and  terminer,  they 
were  each  tried  by  legal  quorums  of  the  judges.  The  jurors  in 
the  two  cases  were  not  drawn  from  the  same  panel,  but  each  jury 
from  a  separate  panel,  summoned  in  pursuance  of  an  order  for 
separate  ventres  for  the  respective  weeks  of  26th  of  June  and 
3d  of  July,  18T6. 

The  court  decided  that  it  was  proper  to  proceed  with  tlie  trial, 
and  it  having  been  begun  within  the  term,  there  existed  no  legal 
reason  why  the  case  should  not  proceed,  though  a  conclupion  was 
not  reached  till  after  the  end  of  the  term :  Lich  v.  Common- 
wealth, 9  Watts,  200 ;  3[illcr  v.  Wilson,  12  llarns,  12.2  ;  117//- 
iams  V.  Common  icealth,  5  Casey,  102 ;  Briceland  v.  Cofnmon- 
^cealth,  21  P.  F.  Smith,  463.  See  also  the  following  acts  of 
assembly :  Act  of  18th  March,  1875,  Purd.  Dig.,  2054: ;  Act 
18th  April,  1876,  Purd.  Dig.,  2028;  Act  9th  April,  1874,  Purtl. 
Dig.,  1886;  Act  7th  April,  1876,  Purd.  Dig.,  2066. 

The  testimony  offered  under  the  second  and  third  assignments 
was  t<5fc  show  the  motive  for  the  murder,  and  the  relation  of 
McParlan  to  the  defendants  at  the  time  the  confessions  were 
made  to  him  by  Carroll,  McGehan  and  Roarity.  While  the  tes- 
timony, as  it  was  before  the  court,  showed  the  origin  of  the  con- 
spiracy in  the  malice  and  hatred  of  Thomas  Duffy  toward  Yost, 
yet  it  failed  to  explain  the  readiness  of  the  other  dtfendants  to 
enter  into  the  conspiracy.  But  if  the  commonwealth  could  slwnv, 
as  it  did,  under  the  offer  now  under  discussion,  that  all  the 
defendants  were  members  of  a  secret  and  criminal  organization, 
whose  general  j)ractice  was  to  engage  in  the  commission  of 
crimes,  and  to  aid  and  assist  its  members  in  esca|>ing  detection 
and  punishment;  that  it  was  the  j)ractice  of  one  division  to  aid 
other  and  distant  divisions  in  avenging  alleged  injuries  to  its 
members;  that  the  practice  was  for  the  body-master  or  president 
of  a  division  to  select  the  men  to  do  the  deed,  and  for  tho  divi- 
sion which  was  thus  favored,  in  its  turn  to  furnish  the  men  to 
commit  any  crime  that  might  lie  required  of  them,  in  return  for 
the  favor ;  applying  this  practice  to  the  facts  of  the  case,  have 
we  not  establihhed  an  adecpiate  motive  on  the  part  of  the  defend- 
ants, fully  explaining  their  I'oiincction  with  the  murder  of  Yost? 

Where  facts  and  circiinistaiiccs  amount  to  pi'oof  of  another 
urlmu  than  that  charged,  und  there  is  ground  to  buliuvu  that  tho 


■■;■  1  Mi'i 
■  ■  :  ii!  i 


CARROLL  V.  COMMONWEALTH. 


307 


crime  charged  grew  out  of  it,  or  was  in  any  way  caiisctl  by  it, 
8uch  facts  and  circumstances  may  be  proved  to  show  tlie  quo 
animo  of  the  accuped  :  Wluirt.  Crini.  Law,  047-649 ;  Common- 
wealth V.  Ferrigan,  S  Wriglit,  388. 

An  iiccomplice  is  a  competent  witness.  It  is  the  province  of 
till!  court  to  determine  the  competency  of  the  witness  ;  it  is  for 
tlio  jury  to  determine  upon  the  credibility  of  the  witness.  The 
rnle,  in  regard  to  the  tcstitnony  of  an  accomplice,  does  not 
extend  further  than  to  require  of  the  judge  to  advise  the  jury 
not  to  convict  on  the  uncorroborated  testimony  of  an  accomplice, 
and  the  court,  in  this  ease,  so  advised  the  jury  in  express  terms. 
1  Phil.  Ev.,  110,  110,  117;  1  Whart.  Criui.  L.,  ^785;  1  Greenl. 
Ev.,  §  380,  381 ;  Ii,g.  v.  Dumie,  5  Cox  C.  C,  507 ;  Rex  v.  Bar- 
mrd,  1  C.  and  P.,  88:  ]!ex  i;.  WUl'es,  7  Id.,  272  ;  Eex  v.  llast- 
vi(/s\  /(/.,  153;  A*«y.  v.  S/nhhs,  Dearsley's  C.  C,  555.  We  have 
the  tostinioiiy  of  an  accomplice  ;  tirst,  to  all  the  acts  and  declara- 
tions of  the  jKvrtics  in  the  furtherance  of  the  conspiracy  ;  second, 
to  the  acts  and  declarations  subsequent  thereto,  made  by  the 
defendants  on  trial,  in  regard  to  their  part  in  said  conspiracy, 
their  Hight,  and  the  possession  of  the  instrument  of  death,  first 
by  one,  and  then  another  of  their  number.  To  confirm  the  testi- 
mony of  the  accomplice  in  all  points,  and  also  to  trace  the  pos- 
session and  establish  the  identity  of  the  Roarity  pistol,  the  com- 
monwealth proved,  under  the  offers  excepted  to,  and  now  assigned 
for  erroi",  that  Kerrigan  was  met  upon  his  return  from  Summit 
J I  ill  on  the  night  of  the  15th  of  July  by  Churchill  and 
Mcfianghlin  ;  that  on  the  27th  of  July,  Kerrigan  exhibited  the 
Ilnarity  pistol  toMcParlan  and  McNellis,  and  sent  it  by  the  latter 
to  Roarity  the  same  day  ;  that  on  the  1st  of  September,  Kerri- 
gan and  the  parties  named  wore  at  McGehan's  saloon  ;  that  the 
counter  in  the  saloon  was  examined,  and  u  piece  cut  therefrom, 
and  oiTered  in  evidence,  which  showed  the  mark  of  the  bullet, 
and  the  pistol  offered  in  evidence,  showing  that  the  ball  there- 
from would  havt!  occasioned  the  indentation  therein  ;  that  tlie 
l)istol,  with  the  Roarity  pistol,  was  found  on  the  4th  of  Septem- 
ber, in  the  place  where  Kerrigan  stated  they  had  been  placed  ;  that 
Roarity  confessed  to  McParlan  that  he  had  lost  his  pistol  by 
reason  of  its  being  found  in  the  bushes  at  Tamaqua  ;  that  Robert 
Rreslin  had  met  Me(Jehan  and  15(tyli'  on  a  by-jjath  from  the  road 
to  Taniatpia.  Surely,  if  corroboiiitiou  is  recpiired  of  the  state-i 
nients  of  on  accomplice,  no  rule  has  ever  been  established  or 


^1: 


*?        : 


.  il'M 


308 


AMERICAN  CUnilXAL  KKPORTS. 


Ik 


declared,  that  the  corroboration  may  not  extend  to  every  part  of 
Ill's  testimony,  as  to  the  acts  and  declarations  of  the  defendants. 
And  if  a  confession  or  statement  is  to  he  introdneed  in  evidence, 
one  very  necessary  element  would  seem  to  be,  that  parties  who 
reside  miles  apart  should  be  in  such  position  as  to  render  tlie 
making  of  that  confession  possible. 

The  ninth  assignment  of  error  relates  to  the  admission  of  the 
evidence  of  Mrs,  Breslin,  who  testified  to  the  time  her  son, 
Robert  Breslin,  had  returned  home  on  the  morning  of  the  6tli 
of  July.  The  witness  Robert  Breslin,  had  testified  to  his  return 
home  that  morning,  and  to  meeting  near  his  home  McGelian  and 
Boyle  on  a  by-path  leading  from  the  TaiiKupia  and  MaucU 
Chunk  road.  The  commonwealth  simply  fixed  by  the  witness 
Mrs.  Breslin,  the  fact  of  the  return  of  Robert  Breslin  tliiit 
morning  to  his  home,  and  the  time. 

Jfr.  lif/on,  in  reply.  We  contend  that  Mrs.  Breslin  could  not 
corroborate  her  son,  who  was  called  to  corroborate  Kerrigan,  as 
to  his  whereabouts.  If  this  were  so,  there  might  be  an  endless 
series  of  corroborations.  The  main  error,  in  our  estimation, 
arose  under  the  second  and  third  assignments.  Until  it  had 
shown  the  conspiracy,  the  commonwealth  had  not  the  right  to 
make  the  offer  it  did.  Before  testimony  of  the  character  given 
was  allowed,  good  legal  reasons  therefor  should  have  been  slutwii. 
Its  introduction  was  equivalent  to  the  death  warrant  of  these 
prisoners.  The  connection  of  the  prisoners  with  the  order  of 
"Molly  Maguires"  had  not  been  shown.  Certain  facts  wi're 
testified  to  by  Kerrigan,  and  the  commonwealth  proceeded  to 
make  the  offer  in  regard  to  the  order.  The  testimony  of  Kerri- 
gan shows  that  the  enterprise  was  an  individual  one,  and  not 
inspired  or  arranged  in  the  order  of  "  ]\[olly  Maguires,"  and 
after  the  commonwealth  had  failed  to  sustain  their  offer  with  his 
evidence,  wo  asked  the  court  to  withdraw  the  evidence,  which 
was  refused.  It  was  an  attempt  to  show  a  general  wicked  prac- 
tice, and  without  any  connection  with  this  particular  case.  It 
will  be  observed  also  that  the  conversation  in  regard  to  the  trade 
of  the  death  of  Yost  for  that  of  Jones,  M'as  after  the  murder  of 
Yost,  and  was  not,  therefore,  the  consideration  for  the  murder  of 
Yost.  If  there  was  any  consideration  it  was  between  the  parties 
as  individuals,  and  not  in  pursuance  of  any  arrangement  of  the 
order  of  "Molly  Maguires,"  and  wo  contend,  therefore,  that  it 
waa  dangerous  and  incompetent  testimony  to  prove  the  practices 


;l.!f:: 


MiM 


?■'*>■?■ 


CARROLL  V.  COMMONWEALTH. 


309 


of  an  infamous  organization,  and  let  it  go  to  the  jury,  to  sliow 
that  these  prisoners  belonged  to  it. 

Chief  Justice  Agnew  delivered  the  opinion  of  the  court,  May 
7,  1877. 

The  county  of  Schuylkill  constitutes  a  separate  judicial  dis- 
trict, having  five  judges,  of  whom  three  are  learned  in  the  law, 
and  two  are  associates.  One  of  the  judges  learned  in  the  law 
and  an  associate  were  engaged  in  the  trial  of  Thomas  Manley, 
for  homicide,  from  the  27th  of  June  until  July  12th,  1870.  The 
case  of  these  prisoners,  James  Carroll,  James  Boyle,  Hugh 
McGehan  and  James  Roarity,  was  called  for  trial  July  6,  1876, 
before  President  Judge  Pashing  and  Judge  Walker,  an  associate 
k'iU'ned  in  the  law.  In  consequence  of  motions  for  a  change  of 
venue  and  to  quash  the  array  of  jurors,  the  jury  for  this  trial 
taken  from  the  panel  for  the  second  week  was  not  completed 
until  Saturday,  July  8th,  the  last  day  of  the  term. 

The  jury,  being  sworn,  could  not  be  discharged,  and,  conse- 
quently, the  trial  was  laid  over  until  the  next  week.  Circum- 
stances in  relation  to  the  business  of  the  court  existed,  in  conse- 
quence of  which  the  actual  hearing  began  on  the  13th  of  July, 
and  the  trial  lasted  then  until  the  22d.  It  is  objected  that  there 
was  no  power  thus  to  continue  the  case  from  day  to  day,  after 
the  expiration  of  the  term.  The  objection  is  groundless.  At 
one  time  this  argument  might  have  had  some  force,  but  the 
strictness  of  the  common  law  has  been  beneficially  removed  by 
lc<;islation.  The  two  acts  of  the  18th  of  March,  1875,  Painph. 
L,  25,  28,  the  act  of  7th  of  April,  1870,  Pamph.  L.,  19,  and  the 
decision  in  Brlceland  v.  The  Cotninonwealth,  24  P.  F.  Smith, 
463,  remove  all  doubt  of  the  legality  of  the  proceedings  in  the 
court  below. 

riuler  these  laws  it  is  competent,  in  such  a  district  as  that  of 
Scliuylkill,  to  hold  two  courts  of  oyer  and  terminer  at  the  same 
tinic,  to  issue  sepaiate  venires,  and  to  make  all  necessary  and 
C(»nvenient  orders  for  the  dispatch  of  business.  The  jurisdiction 
was,  thei-efore,  complete. 

According  to  Bricihind  v.  The  CoiiimonweaWi,  w  trial  begun 
on  the  last  day  of  the  term  may  bo  continued  aftiM-wards.  A 
jury  sworn  cannot  be  discharged  without  prejudice  to  the  inter- 
ests of  justice,  and  oU'enders  nnist  often  escape  if  the  mere  modeiii 
and  forms  of  procedure  are  to  bo  held  so  strictly.     The  continu- 


■i 


t;>' 


310 


AMERICAN  CRIMINAL  REPORTS. 


ance  of  the  case,  by  adjournments,  from  day  to  day,  from  Moir- 
day  until  Thursday,  when  the  trial  proper  began,  was  a  matter 
necessarily  within  the  sound  discretion  of  the  court.  The  court 
of  oyer  and  terminer  must  know  the  state  of  its  own  business 
better  than  we,  and  what  is  proper  in  order  to  administer  justice 
to  all  persons  before  the  court.  We  cannot  say  that  its  discre- 
tion was  abused.  It  does  not  appear  to  us  that  its  authority  was 
illcf^ally  exercised. 

We  come  to  the  exceptions  taken  on  the  trial.  On  the  morn- 
ing of  the  6tli  of  July,  1875,  about  two  o'clock,  Benjamin  F. 
Yost  was  shot  by  two  men,  while  he  was  in  the  act  of  extin- 
ll^^ui.  hing  a  lamp,  in  the  borough  of  Tamaqua,  Schuylkill  county. 
Hugh  McGehan  and  James  Boyle,  the  men  shown  to  have  shot 
him,  resided  at  Summit  Hill,  about  eight  miles  distant,  and  were 
strangers  to  him.  Ko  motive  such  as  ordinarily  influences  men  to 
commit  so  great  a  crime  was  shown  to  exist  on  their  part.  Tlioy 
were  neither  insane  nor  intoxicated,  so  that  it  might  be  inferred 
that  the  murder  was  without  an  ordinary  motive,  or  done  by  per- 
sons unconscious  of  the  wickedness  of  the  act.  Without  a  mov- 
ing cause,  the  killing  was  so  unreasonable  and  so  contrary  to 
human  observation  upon  the  commission  of  great  crimes,  the 
case  would  have  been  barren  of  those  elements  which  lead  the 
mind  to  a  conviction  of  the  guilt  of  persons  who  were  not  n-cog- 
nized  at  the  time  of  the  act,  and  against  whom  tlic  evideiu'e 
would  have  been  altogether  circumstantial.  Under  these  cir- 
cumstances a  jury  might  reasonably  doubt  the  identity  of  the 
prisoners  McGehan  and  Boyle,  and  would  find  nothing  satisfac- 
tory to  rest  upon  for  the  conviction  of  James  Carroll  and  James 
Roarity,  the  prisoners  indicted  jointly  with  them,  but  who  were 
not  present  at  the  commission  of  the  homicide.  Tiiat  the  evi- 
dence as  given  convicts  all  of  the  murder  is  beyond  a  reasonuhlo 
doubt,  yet  this  certainty  of  the  proof  was  to  be  solved  by  facts 
more  strange,  unnatural  and  horrible  than  ever  disclosed  hitherto 
in  the  annals  of  crime  in  this  country — facts  which  nothing  but  the 
clearest  evidence  could  compel  us  to  believe.  The  leading  features 
of  this  singular  case  is  the  existence  of  an  order,  or  band  of  men, 
having  its  head  in  Ireland,  extending  into  the  United  States  and 
spread  by  ramifications  throughout  the  coal  regions  of  Pennsyl- 
vania, each  minor  division  governed  by  a  body-master  of  its  own 
locality,  to  whom  the  secret  ])assword8,  signs  and  tokens  of 
recognition,  called  "  goods,"  are  transmitted  through  a  descend- 


h 


CARROLT,  V.  COMMONWEALTH. 


311 


-fi^ 


ing  grade  of  officers  fi-om  tlie  head  of  the  order  to  the  body- 
masters,  and  by  tliein  distributed  to  tlie  members.  When  we  are 
informed  that  these  men  traded  in  blood,  taking  life  for  life  by 
compact,  burned  houses,  mjlls,  breakers  and  valuable  structures, 
at  the  instance  of  eacli  other,  and  banded  together,  by  means  of 
concealment,  money  and  perjury,  to  shield  each  other  from  pun- 
ishment, our  incredulity  is  so  excited  we  would  fail  to  believe 
the  tale  from  the  mere  mouths  of  two  or  three  witnesses ;  and 
nothing  less  than  facts  clearly  and  fully  proved  could  command 
our  belief.  These  the  commonwealth  undertook  to  prove,  and 
strange  as  it  may  seem,  proved  beyond  the  possibility  of  a 
doubt.  The  chief  witnesses  by  whom  the  organization  called 
the  "  Aiuuent  Order  of  Hibernians,"  but  more  commonly  known 
as  the  "  Molly  Maguires,"  was  shown  to  exist,  and  its  purposes, 
practices,  passwoids  and  signs,  were  James  Kerrigan,  a  member 
of  tlie  order,  and  a  party  to  the  killing  of  one  John  P.  Jones,  iu 
return  for  the  killing  of  Benjamin  F.  Yost,  and  James  McPar- 
lun,  a  detective,  who  procured  himself  to  be  admitted  a  member 
of  the  order  for  the  purpose  of  obtaining  its  secrets  and  frustrat- 
ing its  designs.  Standing  alone,  the  testimo!iy  of  Kerrigan 
would  be  worthless,  and  even  McParlan's,  without  confirmation, 
would  be  weak  and  perhaps  unconvincing.  Hence  the  common- 
wealth felt  the  necessity  of  sustaining  the  narratives  of  these 
witnesses  by  a  long  array  of  circumstjinces,  beginning  before  the 
murder  of  Yost,  and  running  down  to  the  subse(iuent  killing  of 
-loiies  by  way  of  return.  These  circumstances  constituted  a 
I'liain  of  evidence,  branching  out  for  the  proof  of  two  distinct, 
yet  completely  connected  matters.  One,  primarily,  for  the 
identification  of  the  prisoners  McGehan  and  IJoylc,  by  whom  the 
murder  of  Yost  was  committed  ;  the  other,  secondarily,  for  the 
proof  of  the  causes  and  motives  for  the  commission  of  the  act, 
and  the  privity  of  Carroll  and  Roarity  as  accessories  before  the 
fa(!t,  and  liable,  therefore,  as  principals,  under  the  180th  section 
of  the  criminal  code  of  March  31,  18G(),  and  44th  section  of  the 
criminal  procedure  act. 

The  chain  of  circumstances  was,  therefore,  double,  having  a 
twofold  relation  to  the  case,  which  made  the  occurrences  after 
the  murder  competent  evidence.  The  facts  which  proved  the 
existence,  purposes  and  practices  of  the  order  known  as  the 
"  Molly  ^taguires,"  as  the  means  of  exhibiting  the  causes  and 
motives  leading  to  the  murder  of  Yost,  and  the  participation  of 


i.,] 


312 


AMERICAN  CUIMINAL  REPORTS. 


}>1 


hi 

i 


'.■■M-  ■  !  ^ 


Carroll  and  Roarity  with  McGelian  and  Boyle,  in  the  execution 
of  the  deed,  were  not  necessarily  all  antecedent.  Some  wero, 
others  were  not,  but  by  confessions  and  direct  links  were  trace- 
able to  those  liavin<^  a  prior  existence.  Hence  the  eTideiu'c  of 
these  subsequent  events,  while  having  no  direct  bearing  on  Ilu> 
identification  of  McGehan  and  Boyle  as  the  actual  perpetrators 
of  the  murder,  had  a  etrong  and  pertinent  bearing  upon  the 
causes  and  motives  operating  upon  them  in  the  perpetration  of 
the  crime,  and  upon  the  connection  of  Carroll  and  Roarity  with 
them,  as  participants  in  their  guilt. 

Thus  the  entire  body  of  the  evidence  became  necessary  to 
show  the  conspiracy  which  linked  all  the  prisoners  together,  to 
show  that  they  were  combined  in  the  most  intimate  relations, 
and  in  a  common  purpose,  that  their  subsequent  conduct  and 
confessions  M'ere  thereby  connected  and  made  competent  against 
each  other,  and  that  all  these  combinations  and  purposes  led 
directly  to  the  commission  of  another  murder,  that  of  Jones,  as 
the  return  price  of  the  killing  of  Yost,  which  became  linked  to 
each  other,  as  a  part  of  the  evidence  exhibiting  the  nature  and 
effect  of  the  combination  leading  to  the  killing  of  Yost. 
The  whole  network  of  the  evidence  is  so  complicated,  and 
so  clearly  united  .and  connected  together  in  proving  tlie  guilt 
of  all  the  prisoners,  and  their  motives  and  the  agencies 
employed,  it  is  not  possible  to  strike  out  the  subsequent  facts 
without  destroying  to  a  great  extent  the  unity  and  relevancy 
of  thcjse  which  preceded  the  act.  McParlan's  testimony  strongly 
corroborates  Kerrigan's,  and  both  are  sustained  and  supported 
by  otlier  witnesses  as  to  the  facts,  before,  at  the  time  of,  and 
after  the  murder.  When  these  two  ])urpose8  of  the  testi- 
mony are  borne  in  mind,  we  see  clearly  that  the  objections 
to  the  evidence  constituting  the  second  and  third  errors,  aiid 
fourth  to  the  ninth  inclusive,  are  without  weight.  We  must 
look  at  the  real  competency  of  the  evidence  and  not  at  the 
order  of  its  reception  ;  anil  when  we  find  that  it  was  all 
finally  competent,  we  will  not  reverse,  because  of  the  time  or 
order  of  its  introduction.  In  this  connection  we  may  notice  that 
part  of  the  otfer  set  out  in  the  second  assignment  of  error,  in 
which  it  is  stated  that  the  murder  of  Yost  was  to  be  the  |)rice  or 
consideration  of  the  murder  of  .I'lin  1*.  Jones.  Now,  though 
when  the  murder  of  Yost  was  undertaken,  that  of  John  P.  Jotio 
was  not  then  stated  or  understood  to  be  the  consideration  for  it, 


STATE  V.  KRING. 


313 


3ution 
wore, 
tnice- 
H'O  of 
>n  llic 
I'ators 
n  tlio 
on  of 
witli 


yet  it  became  an  important  fact  in  the  disclosure  of  the  purposes 
{iiid  pi-actices  of  tliose  who  participated  in  the  murder  of  Yost, 
iiiid  of  the  nature  and  customs  of  tlie  order  to  which  they 
l,(l(itigt'd,  which  made  the  murder  of  Jones  a  return  compensa- 
tion for  the  murder  oi  Yost.  The  evidence  under  that  offer  was 
tlierefore  properly  retained  in  the  case,  and  the  court  committed 
no  error  in  refnsin^  to  strike  it  out. 

The  ivlevancy  of  the  evidence  set  out  in  the  assignments  of 
error  down  to  the  sixteenth,  is  made  manifest  by  what  has  been 
saiil.  The  evidence  is  not  simply  corroborative  of  the  testimony 
of  Kerrigan ;  it  is  to  a  large  extent  confirmatory  and  independent, 
k'liding  strength  to  those  parts  which  in  themselves  tend  to 
e8t:il)lish  the  guilt  of  the  prisoners.  This  case  is  well  illustrated 
by  Jvsop's  fable  of  the  bundle  of  rods.  One  by  one  each  stick 
may  be  taken  away  and  ejisily  broken,  but  the  united  fagot 
resists  the  strength  that  would  destroy  it.  The  evidence  being 
properly  before  the  jury,  we  cannot  perceive  that  the  court  com- 
mitted error  in  charging  upon  it. 

Tlie  sentence  of  the  court  of  oyer  and  terminer  is  therefore 
affirmed,  and  the  record  is  ordered  to  be  remitted  for  execution 
of  the  sentence  according  to  law. 


State  v.  Kring. 

(04  Mo.,  591  ^ 

IIoMinnK:    Prisoner  nJuirl-fed  in  court — Endence  a9  to  sanifi/  —  Error   not 
/)rijiiilict4il — liiijiivficr  uri/intient  of  pruneculinfj  coviiKel  —  Murul  inxanity. 


It  is  error,  lor  wliich  ii  conviction  will  be  reversed,  to  keep  the  prisoner 
slmcklcd  in  court  (lurin.i;-  his  trial. 

The  contents  of  leltcrs  written  by  the  prisoner  may  be  given  in  evidence  to 
establish  his  siinity,  where  insanity  is  set  up  as  n  defense. 

To  constitute  the  crime  of  murder  in  the  flrst  degree,  delibiMution  and  pre- 
meditalion  must  be  proven,  and  an  instruction  to  the  jury,  defininu:  mur- 
der in  the  tir«^t  dcirrcc,  which  omits  these  elements,  is  erroneous:  SUite  r. 
Fault r,  <»1  Mo.,  RllS;  Htnlc  v.  Lane,  G4  Mo.,  ;}19.  But  where  all  the  evi- 
dence shows  that  the  killing  was  deliberate  and  premeditated,  insanity 
beinji'  the  oidy  defense  set  u)),  the  error  does  not  prejudice  the  prisoner, 
and  is  not  ground  for  niversal. 

The  prosecuting  counsel  has  no  right  to  argue  to  the  jury  that  in  a  doubtful 
case  it  is  safer  to  convict  than  to  uc(|uit,  on  the  ground  that  an  acquittal  is 
final,  but  if  the  defendant  is  wrongfully  convicted  the  conviction  will  Lu 


f 

it! 

^!i 

,■  r.[;,i,i 

i' 

l 

814 


AMERICAN  CRIMINAL  REPORTS. 


set  aside  in  a  higher  court,  and  tlie  trial  judge  sliould  not  permit  such  an 
argument. 
It  seems  that  moral  as  contradistinguished  from  mental,  insanity,  is  insufli 
cieut  to  relieve  a  party  from  responsibility  for  crime, 

.  Naptox,  J.  The  defendant  was  tried  and  convicted  of  mnrdor 
in  tlie  fii-st  degree,  at  tlie  November  term,  1875,  of  the  criminal 
court  of  St.  Louis,  and  sentenced  to  be  lianged,  but  on  an  ap])('iil 
to  the  court  of  appeals  of  St.  Louis,  the  judgment  was  reversed 
and  a  new  trial  ordered,  and  from  this  last  judgment  of  reversal 
the  state  appeals  to  this  court. 

As  the  opinions  of  the  court  of  appeals  are  reported  and  pult- 
lished,  it  is  unnecessary  to  review  the  ground  upon  whi(!h  their 
judgment  of  reversal  is  based,  in  which  we  concur.  The  Eiijj;- 
lish  authorities,  to  sustain  the  conclusion  of  the  court  of  appeals, 
are  referred  to  in  the  opinion,  and  also  in  the  brief  of  the  coun- 
sel for  the  defendant,  in  this  court,  to  which  may  be  addccl  a 
decision  in  California  {People  v.  Harrington,  42  Cal.,  1C5), 
referred  to  by  the  attorney-general.  From  i>ll  these  cases  it 
seems  very  clear  that,  without  some  good  reasoii  authorizing  the 
criminal  court  to  depart  from  the  general  practice  in  England 
and  in  this  country',  the  shackles  of  the  prisoner,  when  brought 
before  the  jury  for  trial,  should  be  removed. 

We  have  no  doubt  of  the  power  of  the  criminal  court,  at  the  com- 
mencement, or  during  the  progress  of  a  trial,  to  make  such  orders 
as  may  be  necessary  to  secure  a  quiet  and  safe  one ;  but  the  facts 
stated  by  the  court  in  this  case,  as  shown  by  the  record,  that  the 
prisoner  had  assaulted  a  person  in  court,  about  three  months 
before  the  term  at  which  he  was  tried,  would  hardly  authorize 
the  court  to  assume  that,  on  his  trial  for  life,  he  would  be  ffiiiltv 
of  similar  outrages.  There  must  be  some  reason,  based  on  the 
conduct  of  the  prisoner,  at  the  time  of  the  trial,  to  authorize  so 
important  a  right  to  be  forfeited. 

When  the  court  allows  a  prisoner  to  be  brought  before  a  jury 
with  his  hands  chained  in  irons,  and  refuses,  on  his  application^ 
or  that  of  his  counsel,  to  order  their  removal,  the  jury  nmst 
necessarily  conceive  a  prejudice  .against  the  accused,  as  being,  in 
the  opinion  of  the  judge,  a  dangerous  man,  and  one  not  to  lie 
trusted,  even  under  the  surveillance  of  officers.  Besides,  the  con- 
dition of  the  prisoner  in  shackles  may,  to  some  extent,  deprive 
him  of  the  free  and  calm  use  of  all  his  faculties.  We,  th(M-efore» 
concur  in  the  opinion  of  the  court  of  appeals  on  this  point. 


STATE  V.  KRING. 


315 


We  have  been  unable  to  perceive,  after  a  careful  examination 
of  the  record  touching  that  point,  why  the  court  rofused  to  allow 
the  contents  of  defendant's  letters  to  Mrs.  Broemser  to  be  estab- 
lislied  by  the  witness  called  for  tliat  purpose,  who  proved  their 
destruction,  and  who  had  read  the  letters.  This  occurred  upon 
the  examination  of  tlie  second  witness  introduced  by  the  defend- 
ant to  establish  his  defense,  which  was  exclusively  confined  to 
the  proof  of  insanity.  Although  we  have  been  unable  to  find 
any  case  which  decides  precisely  the  question  involved  in  this 
case,  it  seems  to  be  generally  conceded,  that  when  the  question  is 
concerning  the  sanity  or  insanity  of  a  person,  his  acts  and  declar- 
atioiis  previous  to,  and  up  to  the  period  when  his  capacity  for 
action  or  his  responsibility  for  his  acts  is  called  in  question,  and 
even  subsequently,  are  admissible  to  throw  light  on  the  condition 
of  his  intellect  at  the  time  such  acts  or  declarations  occur. 

His  letters  are  certainly  as  valuable  proof  as  his  verbal  declar- 
ations. The  case  of  Wright  v.  Doe  dem.  Tatham  (7  Ad.  and 
El.,  317),  contains  a  most  elaborate  discussion  of  this  subject,  both 
by  the  judges  of  the  court  of  queen's  bench  and  in  the  exchequer 
cliamber.  The  question  in  that  case  was  as  to  the  capacity  of  a 
testator,  and  letters  written  to  him,  and  found  in  his  desk  after 
Ills  death,  were  oflFered  as  evidence  of  his  sanity  at  the  time  he 
made  his  will,  although  written  twenty  or  thirty  years  before  his 
death. 

A  majority  of  the  judges  in  both  courts  did  not  consider  the 
letters  admissible,  because,  upon  examination  of  the  testimony, 
they  were  of  the  opinion  that  suflicient  evidence  was  not  intro- 
(hu;ed  to  connect  these  letters  with  any  act  of  the  testator  recog- 
nizing their  reception.  A  minority  of  the  judges  in  both  courts, 
a  separate  opinion  being  delivered  by  each  of  the  judges  in  both 
courts,  thought  the  evidence  suflicient  of  acts  on  the  part  of  the 
testator,  upon  their  reception,  to  authorize  their  introduction. 

All  the  judges  agreed  that,  without  such  connection  being 
established  between  the  letters  and  the  action  of  the  testator 
on  their  reception,  the  letters  were  inadmissible. 

It  will  be  observed  that  the  letters  in  question  were  addressed 
to  the  person  whose  sanity  was  tinder  consideration.  In  the 
present  case  the  letters  proposed  to  be  introduced  were  written 
by  the  defendant,  whose  sanity  was  called  in  question,  and  it 
would  seem,  in  such  a  case,  that,  in  the  opinion  of  the  court  who 
decided  the  case  in  Wright  v.    Doe,  there  was  no  question  of 


\ 


m 


816 


AMEilICAN  CRIMINAL  REPOR.^. 


m 


tlieir  competency,  as  declarations  of  his,  to  establish  the  condi-, 
tion  of  his  mind  at  the  time  they  were  written.  And,  if  tlie 
letters  were  destroyed,  their  contents  could  be  established  by  a 
witness  who  had  read  them.  Of  course,  such  letters  could  be  no 
evidence  of  the  facts  stated  in  them,  and  the  court  should  so 
instruct  the  jury,  as  was  done  by  the  crimiiud  court  in  the  case 
in  reference  to  other  letters  introduced  which  were  found  on  the 
person  of  the  prisonin*  when  arrested. 

The  iifth  instruction  given  by  the  court,  on  the  trial,  was  as 
follows:  "When  killing  is  done,  not  accidentally  or  by  mis- 
chance, but  willfully,  with  intent  to  kill,  cen  though  such 
intent  has  existed  for  but  a  moment  before  '  commission  of 
the  act,  and  with  such  malice  as  I  have  abo  iiied — that  is 

the  willful  doing  of  a  wrong  act  without  just  cause  or  excuse — 
it  is  murder  in  the  first  degree." 

This  instruction,  as  applied  to  murder  in  the  first  degree,  was 
erroneous,  according  to  the  decisions  of  this  court  in  the  case  of 
The  State  v.  Foster,  61  Mo.,  54S,  and  The  State  v.  Zone,  64  Mo., 
319.  The  instruction,  however,  as  applied  to  the  facts  of  the 
present  case,  was  immaterial  and  harmless,  since  all  the  evidence 
offered  on  behalf  of  the  defendant,  as  well  as  that  offered  for  the 
state,  proved  that  the  killing  was  premeditated  and  deliberate,  if 
defendant  was  sane.  There  was  no  dispute  on  this  point.  Thu 
defense  was  based  exclusively  on  the  insanity  of  the  prisoner, 
upon  which  subject  the  instructions  given  by  the  court  are 
admitted  to  have  been  as  favorable  to  the  accused  as  the  law 
justified. 

A  point  has  been  made  in  regard  to  the  propriety  of  certain 
remarks  of  the  circuit  attorney  to  the  jury  in  his  closing  speech, 
which  the  bill  of  exceptions  shows  to  have  been  as  follows :  "  If 
you  wrong  the  accused  by  finding  hitu  guilty,  that  wrong  can  be 
righted,  because  there  are  two  courts  above  this  in  which  the 
accused  can  have  this  reversed,  the  court  of  appeals  and  the 
supreme  court.  If  you  are  not  justified  in  finding  this  man 
guilty,  it  is  in  their  power  to  rectify  any  error,  while  if,  on  the 
other  hand,  you  turn  the  murderer  loose  in  the  ct»nmi unity,  no 
matter  how  frail  might  be  the  foundation  on  which  you  do  it, 
and  how  frail  may  be  the  scaffulding,  it  takes  him  forever  in  the 
light  of  freedom  again,  and  you  will  make  a  wound  in  this  com- 
munity that  will  never  be  healed." 

The  statement   that  the   higher  courts  referred  to  had  the 


STATE  V.  KRING. 


317 


condi-, 

if  the 

hy  a 

l)e  no 

nld  so 

10  case 

on  tlie 


t' 


power  to  review  the  finding  of  the  jury  on  tlie  weight  of  evi- 
dence, was  calculated  to  induce  the  jury  to  disregard  their 
responsibility.  It  is  unnecessary  to  decide  whether  such  remarks 
from  the  counsel  for  the  state  would  require  the  judge  to  grant 
a  now  trial,  on  their  being  brought  to  his  attention  in  a  motion 
for  that  ])uruose,  since  in  this  case  a  now  trial  has  already  been 
(lutermined  on.  Tlie  judge  j)ro.siding  at  the  trial,  in  our  opinion, 
should  not  have  pernntted  such  remarks  to  be  made  on  the  close 
uf  the  argument,  without  a  ])rompt  correction.  They  were  prob- 
ably made  through  inadvertence  and  in  the  excitement  of  argu- 
ment, and  we  merely  notice  liiem  to  observe  their  impropriety. 
The  circuit  attorney  represents  the  state,  and  it  is  presumable 
rhat  the  state  has  no  wish  to  convict  or  punish  an  innocent  man. 
lie  is  employed  to  see  that  the  laws  against  criminals  are 
enforced,  but  he  is  not  required  to  avail  himself  of  his  privilege 
of  concluding  the  argument  before  the  jury,  to  state  propositions 
(if  law  which  are  clearly  untenable,  with  a  view  to  influence  the 
jury  in  the  verdict. 

This  was  not  a  case  involving  ])roperty,  but  a  proceeding 
involving  life,  and  the  remarks  of  the  court  in  the  case  of  Lloyd 
V.  Uunibal  dc  St.  Joseph  li a  11  road  Co.,  53  Mo.,  514,  must  be 
modified  in  their  application  to  cases  involving  life  or  liberty'. 

As  this  case  is  remanded  for  a  new  trial,  we  decline  to  exju'ess 
any  opinion  on  the  weight  of  the  testimony.  That  there  was 
some  evidence  of  insanity,  seems  conceded  by  the  court  which 
tried  the  case  and  instructed  the  jury  on  that  subject.  Whether 
tlie  defendant  was  inca])able  of  distinguishing  between  right  and 
wrong,  is  a  question  for  the  jury  who  will  hereafter  try  him. 
The  instructions  on  this  subject  were  as  favorable  to  the  prisoner 
as  the  law  warranted,  since  what  is  called  moral,  as  contradistin- 
iiuished  from  mental  insanity,  is  conce'led  to  be  insufficient  to 
relieve  a  party  from  responsibility  for  crime. 

The  judgment  of  the  court  of  appeals,  ordering  a  new  trial,  is 
affirmed. 


Note.— In  Ferguson  v.  State  (49  Intl.,  .33),  and  Sfnfe  v.  Smith  (75  N.  C,  300), 
convictions  were  reversed  on  account  of  the  use  of  improper  language  by  the 
prosecuting  counsel  in  his  address  to  the  jury,  which  the  trial  court  on  motion 
had  rufu.sed  to  restrain.  Both  of  these  cases  are  reported  in  full  in  1  Am. 
trim.  Uep.,  pp.  580  and  583. 


■'1 


^im 


818 


AMERICAN  CRIMINAL  REPORTS. 


m- 


y/it 


Un 


'     '  'if ' 

J-,  '  :  i.  ,'■. ' 

■.^ 

;> 

■4 

RUNTAN  V.   StATB. 
(57  Ind.,  80.) 

Homicidk:    Self-defense  —  Necessity  of  retreating  —  Um  of  deadly  weapons  — 

Opinion  an  the  facts. 

The  ancient  doctrine  which  required  an  assailed  person,  under  all  circum- 
stances, to  retreat  as  far  as  he  oouJd  with  safety  and  avoid,  if  he  possibly 
could,  tiie  necessity  of  taliing  huiuiin  life  iu  defense  of  his  own  life  or  in 
the  protection  of  his  person  from  great  bodily  harni,  has  been  greatly 
modified  by  modern  decisions.  The  weight  of  authority  now  is,  tliut 
when  a  person,  being  without  fault  in  a  place  where  lie  has  a  right  to  be, 
is  violently  assaulted,  he  may,  without  retreating,  repel  force  t)y  force, 
and  if,  in  the  reasonable  exercise  of  his  right  of  self-defense,  his  assailant 
is  Ivillcd,  he  is  justifiable. 

On  the  facts  of  Ibis  case  it  is  considered  by  the  court  tliat  there  w;is  no  evi- 
dence tendinsr  to  show  that  it  was  the  duty  of  the  accused  to  retreat 
before  defending  himself. 

NiBLACK,  J.  At  tlio  February  term,  A.  D.  1877,  of  tlio  Henry 
circuit  court,  tlie  aj)])ella»t,  John  Ruiiyau,  was  indicted  and  tried 
for  the  nnirder  of  one  Charles  Pressnal.  lie  wa.s  convicted  of 
nianshiughter,  and  sentenced  to  the  state  prison  for  tlie  term  of 
eight  years. 

From  the  evidence,  as  it  comes  to  us  in  the  record,  it  appears 
tliat  tlie  a])pellant,  who  resided  two  or  three  miles  from  that 
place,  went  to  Newcastle,  in  the  county  of  Henry,  in  company 
with  some  other  persons,  on  the  7th  day  of  Novcndji-r,  iSTti, 
being  the  day  of  the  last  presidential  election,  for  the  ptirpose  of 
casting  his  vote.  During  the  day,  one  John  Spell,  a  large  and 
vigorous  man,  had  an  altercation  with  the  a])pellant,  during 
which  the  said  Spell  used  harsh,  opprobrious  and  threatening 
language.  Afterwards,  during  the  afternoon,  the  said  Spell,  on 
one  or  two  other  occiision.s,  used  other  angry  and  threatening 
language  to  the  appellant.  Sometime  in  the  afternoon,  the 
appellant,  whose  right  arm  was  so  erijjpled  that  lie  had  not  full 
and  free  use  of  it,  went  to  an  accjuaintance  of  his,  who  lived  near 
by,  and  borrowed  a  pistol,  siiying  that  Spell  was  threatening  him 
and  following  him  up,  and  that  ho  wanted  to  bo  able  to  defend 
himself  in  case  ho  was  attacked.  After  dark  that  cveninir,  the 
appellant,  with  some  of  his  friends,  went  acntss  to  the  j)la('e  of 
Voting  to  get  some  election  news,  if  they  could,  before  ](!aviiig 
for  home.     The   appellant  stopped  on  the  sidewidk,  near  the 


Jllll,!**."! 


STATE  V.  RUN Y AN. 


319 


voting;  place,  ami  leaned  himself  against  the  wall  of  an  adjacent 
huilding.  While  standing  in  that  position  he  was  approached 
bv  one  Benjamin  F.  Moore,  a  constable  of  the  township  and  an 
assistant  marshal  of  the  town,  who  commenced  a  quarrel  with 
liini,  using  angry,  threatening  and  disparaging  language  toward 
him.  While  thus  engaged  with  the  appellant,  Moure  discovered 
one  Henry  Ray,  a  brother-in-law  of  the  appellant,  standing  near 
bv,  a  crowd  having  gathered  around  in  the  mean  time,  and  turned 
on  said  Eay  to  push  him  away  and  out  of  the  crowd.  After 
Moore  thus  turned  away,  the  deceased  rushed  upon  the  appellant 
and  hit  him  two  or  three  blows ;  the  appellant  thereupon  drew  a 
pistol  from  his  coat  pocket  and  shot  the  deceased,  inflicting  upon 
him  a  mortal  wound,  of  which  he  soon  afterwards,  and  on  the 
eamt!  evening,  died. 

This  is  a  brief  outline  of  the  circumstances  connected  with  the 
killing  of  the  deceased,  as  we  have  tried  carefully  to  make  it 
from  a  voluminous  mass  of  testimony.  A  motion  for  a  new  trial 
was  entered  at  the  j)ro[)er  time  and  overruled. 

On  the  trial,  the  court,  of  its  own  motion,  gave  to  the  jury  a 
scries  of  elaborate  and  carefully  prepared  instructions,  in  writing, 
consisting  of  eighteen  in  numl)er,  to  the  giving  of  each  of  which 
the  defendant  reserved  an  excepti(m.  The  action  of  the  court 
in  giving  these  instructions  was  assigned  as  one  of  the  causes  for 
a  new  trial.  The  defendant,  in  his  brief,  urges  objections  to 
two  oidy  of  these  instructions,  known  as  number  seven  and  eight 
of  the  series,  and  only  to  so  much  of  them  as  relates  to  the  sup- 
posed duty  of  a  person  to  retreat  when  assailed,  before  taking 
the  life  of  his  assailant. 

In  instruction  number  seven,  the  court  commences  by  saying: 
"TIic  law  gives  to  every  man  the  right  of  self-defense.  This 
means  that  a  ujan  nniy  defend  his  life,  and  may  defend  his  per- 
son from  great  bodily  liarm.  He  may  repel  force  by  force,  and 
he  may  resort  to  such  force  as,  under  the  circumstances  sur- 
romiding  him,  may  reasonably  seem  necessary  to  repel  the  attack 
U|)on  him,  and,  in  his  defense,  he  may  even  go  to  the  extent 
of  taking  the  life  of  his  assailant.  The  law,  however,  is  tender 
of  hunnm  life,  and  will  not  sulEer  the  life  even  of  an  assailant 
and  wrong-doer  to  be  taken,  unless  the  assault  is  of  such  a  char- 
acter as  to  make  it  appear  reasonably  necessary  to  the  assailed  to 
take  life  in  defense  of  his  own  life,  or  to  protc(?t  his  person  from 
great  bodily  harm.     And  if  the  person  assailed  ean  protect  his 


II 


■  ■- (I 

320 


AMERICAN  CRIMINAL  REPORTS. 


Hi 


I 


i* 


life  and  his  person  by  retreating,  it  is  his  duty  to  retreat,  and  thus 
avoid  tlie  necessity  of  taking  lininan  life.  Do  not  understand 
nie,  gentlemen,  to  say,  that  retreat  is  always  necessary  before  the 
party  assailed  may  take  life  in  his  defense.  Retreat  might  he 
perilous  or  impossible,  and  might  tend  only  to  increase  the  dan- 
ger. If  the  assault  is  of  such  a  character  that  it  reasonably 
appears  to  the  party  assaulted  that  retreat  can  not  be  made  so  as 
to  protect  his  life  or  his  person  from  great  bodily  harm,  tho!i 
retreat  is  not  required." 

The  court,  further  on,  in  the  same  instruction,  after  discussing 
the  right  of  a  person  to  defend  himself  in  the  use  and  enjoyment 
uf  the  public  higliways,  including  the  streets  of  towns  and  cities, 
and  other  contingencies  in  which  the  law  jiermits  human  life  to 
be  taken  in  self-defense,  adds  :  "And  before  a  man  can  take  life 
in  self-defense,  he  must  have  been  closely  pressed  by  his  assailant, 
and  must  have  retreated  as  far  as  he  safely  or  conveniently  coulil, 
in  good  faith,  with  the  honest  intent  to  avoid  the  violence  of 
the  assailant." 

We  do  not  copy  the  instruction  entire,  as  it  is  of  great  lengtli, 
and  includes  other  legal  propositions  to  which  the  defendant 
makes  no  objection.  That  portion  of  the  instnuftion  last  abdvc 
quoted,  clearly  does  not  state  the  hiw  of  self-defense  correctly,  as 
it  is  now  recognized  by  the  general  drift  of  the  American  aiitliur- 
ities.  1  l»isho[)  on  (Criminal  Law,  5th  edition,  section  f>(ir»,  «ays : 
"This  right  of  self-defense  is  commonly  stated  in  the  American 
cases  thus:  If  the  ])erson  assatdted,  being  himself  without  fault, 
reasonably  apprehends  death  or  great  bodily  harm  to  hinistlf, 
unless  he  kills  the  assailant,  the  killing  is  justitiable."  Tsnnicr- 
ous  cases  are  cited  by  him  in  support  of  that  position.  Sir,  alsu, 
drck  r.  The  State,  2-t  Ind.,  151  ;  Ifh-kn  v.  The  Stale,  51  Ind., 
^^)1\   Wall  V.  The  State,  h\l\\^\.,  '^i^X 

In  the  case  of  Creek  v.  The  State,  above  cited,  it  was  held 
that  retreat  is  not  always  a  condition  which  must  preccile  the 
right  of  self  defense.  Wharton  on  Criminal  Law,  vol.  2,  section 
lull),  says :  "  A  man  may  re[)el  t\»rce  by  force  in  the  defense  of 
Jus  person,  habitation  or  property,  against  one  or  many  who 
maiufestly  intetul  and  endeavor,  by  violence  or  surprise,  to  com- 
mit a  ktiown  felony  on  either.  In  su<'h  a  case  he  is  not  obligeil 
to  retreat,  but  nuiy  pursue  his  adversary  till  he  find  himseU'  out 
of  danger;  and  if,  in  a  conflict  between  them,  he  happen  to  kill, 
such  killing  is  justiliable.     The  right  of  self-defcnso  iu  cases  of 


I 


RUNYAN  V.  STATE. 


321 


this  kind  is  founded  on  the  law  of  nature,  and  is  not,  nor  can  be, 
superseded  by  any  law  of  society.  *  *  *  The  right  extends 
to  the  protection  of  the  person  from  great  bodily  harm." 

A  very  brief  examination  of  the  American  authorities  makes 
it  evident  that  the  ancient  doctrine,  as  to  the  duty  of  a  person 
assailed  to  retreat  as  far  as  he  can,  before  he  is  justified  in  repel- 
ling force  by  force,  has  been  greatly  modified  in  this  country, 
and  has  with  us  a  much  narrower  application  than  formerly. 
Indeed,  the  tendency  of  the  American  mind  seems  to  be  very 
Btr(»iigly  against  the  enforcement  of  any  rule  which  requires  a 
person  to  flee  when  assailed,  to  avoid  chaBtisement  or  even  to 
save  human  life,  and  that  tendency  is  well  illustrated  by  the 
rt'cent  decisions  of  our  courts,  bearing  on  the  general  subject  of 
till'  right  of  self-defense. 

The  weight  of  modern  authority,  in  our  judgment,  establishes 
the  doctrine  that,  when  a  person,  being  without  fault  and  in  a 
place  where  he  has  a  right  to  be,  is  violently  assaulted,  lie  may, 
without  retreating,  repel  force  by  force,  and  if,  in  the  reasonable 
exercise  of  his  right  of  self-defense,  his  assailant  is  killed,  he  is 
justifiable.  Whatever  may  have  been,  or  now  is,  the  true  rule 
in  such  a  case,  we  think  the  instruction  from  which  we  have 
quoted,  whether  considered  in  its  6e[)arate  parts  or  taken  alto- 
gether, laid  too  much  stress  on  the  duty  of  a  party  when  assailed 
to  retreat,  before  attempting  to  repel  force  by  force,  and  thus 
prescribed  too  rigid  a  rule  as  applicable  to  the  case  at  the  bar. 

As  we  construe  the  evidence  before  us,  we  are  inclined  to  the 
opinion  that  tlie  question  of  the  defendant's  duty  to  retreat  when 
he  was  assailed  was  not  fairly  involved  in  this  case,  when  it 
went  to  the  jury. 

The  defendant  was  alre.idy  standing  practically  against  a  wall, 
and  surrounded  by  a  crowd  of  persons,  some  of  whom,  at  least, 
were  unfriendly  to  him.  While  standing  in  that  position,  ho 
was  first  approached  by  one  person  in  an  angry  and  threatening 
manner,  and,  when  that  person's  back  was  turned,  he  wiis 
assaulted  by  another.  It  seems  to  us  that  the  real  question  in 
tiie  case,  when  it  was  given  to  the  jury,  was,  was  the  defendant, 
under  all  the  circumstances,  justified  in  the  use  of  a  deadly 
weapon  in  repelling  the  assault  of  the  deceased  ?  Wo  mean  by 
this,  did  the  defeiuhuit  have  reason  to  believe,  and  did  he  in 
fact  believe,  tliat  vvliat  ho  did  wjis  necessary  for  the  safety  of  his 
own  life  or  to  protect  him  from  great  bodily  harm  ?  On  that 
Vol,.  11,-21 


m\ 


i-' 
1 


ui 


I/' 


m 


1 

11 

m 

!  ' 

^i 

1 

1 

322 


AMERICAN  CRIMINAL  REPORTS 


question  the  law  is  simple  and  easy  of  solution,  as  has  been 
already  seen  from  the  authoritieii  cited  above. 

In  our  opinion,  the  court  erred  in  giving  the  instruction  num- 
bered seven  to  the  jury,  and,  for  that  reason,  the  judgment  will 
\iave  to  be  reversed. 

We  regard  instruction  number  eight  as  obnoxious,  to  some 
extent,  to  the  same  objection  urged  against  number  seven,  but 
we  do  not  think  it  necessary  to  set  it  out,  or  further  notice  it 
here,  in  addition  to  what  has  already  been  decided.  Other 
questions  were  reserved  on  the  trial,  and  ai'e  presented  to  us  l)y 
the  record,  but  as  they  may  not  again  arise  in  the  cause,  we 
deem  it  unnecessary  to  pass  upon  them  now. 

The  judgment  is  reversed,  and  the  case  remitted  for  a  new 
trial.  The  clerk  will  issue  the  necessary  notice  for  the  return  of 
the  defendant. 

Petition  for  a  rehearing  overruled. 


■?  'T 


m 


-i«-f*" 


is" 

1 


State  v.   Klliott. 

(45  Iowa,  486.) 

Homicide:  Challenge  to  juror  —  Dying  dednrntiom  —  licligious  rietm  of 
deceased — Kvidence — Threats  by  deceased  not  commv nicatid  to prisomr. 

An  erroneous  overruling  of  a  clmllenjic  for  cnuso,  ia  not  reversible  error 
unless  tiie  ]iris(in(!r  exhausted  his  peremptory  clmllen^ea,  and  is  thtis  jire- 
vented  from  uelting  rid  of  t\u'  oljuoxious  juror  by  a  peremptory  chidlenixe. 

Where  dying  decliu-ations  are  ofTered  in  evidenee,  it  is  the  province  of  liie 
court  to  decide  upon  their  competency;  and  where,  before  they  arc  intro- 
duced, the  respondent  offers  to  prove  Unit  at  the  time  tlie  supposed  dying 
declarations  were  made  the  deceivsed  did  not  believe  ho  was  going  to  die, 
it  is  the  duty  of  the  court  to  hear  this  evidence  and  decide  the  question 
of  fact  before  admitting  the  declarations. 

Where  dying  declarations  are  admitted  in  evidence,  the  respondent  has  the 
right  to  show  that  the  deceased  did  not  believe  in  God,  or  in  a  future 
state.  The  declarations  cannot  bo  excluded  on  this  ground,  but  this  proof 
is  material  as  affecting  their  credibility. 

Circumstances  tending  to  show  hostility  toward  the  defendant,  on  the  part  of 
the  deceased,  and  threats  made  by  the  deceased  against  the  defendaut, 
but  not  communicated  to  him;  field,  properly  excluded  under  the  evidence 
in  this  case. 

Day,  Cu.  J.  I.  Three  persons,  called  as  jurors,  Slaughter, 
Chance  and  Wright,  were,  upon  their  examination  as  to  their 
qualilications  as  jurors,  challen^'od  for  cause  by  the  defendant. 


STATE  V.  ELLIOTT. 


323 


The  challenge  was  overruled.  The  abstract  shows  that  Slaughter 
and  Chance  were  challenged  peremptorily.  The  abstract  does 
not  show  that  Wright  was  so  challenged,  and  it  does  not  appear 
whether  or  not  he  served  upon  the  jury,  but  the  jury  was 
accepted  by  the  defendant  without  exhausting  the  peremptory 
challenges  to  which  he  was  entitled.  If,  then,  "Wright  was 
allowed  to  serve  upon  the  jury,  it  was  by  the  defendant's  volun- 
tary act.  If  the  ruling  of  the  court  in  overruling  the  challenges 
for  cause  was  error,  it  was  error  without  prejudice.  If  defend- 
ant had  exhausted  all  his  peremptory  challenges,  a  very  different 
question  would  be  presented :     State  v.  Davis,  41  Iowa,  311. 

II.  'No  person  was  present  at  the  time  the  wound  was  inflicted 
upon  I»old,  of  which  he  subsequently  died.  The  principal  evi- 
dence against  the  defendant  consists  in  the  dying  declarations  of 
deceased.  The  state  introduced  T.  J.  Caldwell,  a  surgeon,  who 
wa&  called  to  attend  J3old.  He  testified  as  to  his  condition,  and  his 
belief  that  his  dissolution  was  approaching.  He  was  then  asked 
to  state  what  Bold  said  in  regard  to  who  shot  him,  or  who 
inflicted  the  wound  on  him.  The  defendant  objected,  and  then 
offered  to  prove  to  the  court,  by  competent  testimony,  that  at 
the  time  of  making  the  declaration  the  deceased  did  not  believe 
that  he  was  about  to  die,  but  expected  to  recover  from  the  wound, 
and  the  defendant  asked  the  court  to  be  permitted,  at  this  stage 
of  the  proceeding,  to  introduce  his  evidence  touching  the  mat- 
ters mi'de  in  his  offer,  for  the  purpose  of  testing  the  competency 
of  the  declarations  of  deceased.  The  court  refused  to  admit 
this  testimony,  and  permitted  the  declarations  of  deceased  to  be 
iiitro(l\iccd.  In  this  action  we  think  the  court  erred.  It  is  the 
province  of  the  court  to  determine  the  competency  of  the 
declaration  offered.  In  Greenleaf  on  Evidornce,  section  160,  it  is 
Bald :  "  The  circumstances  under  which  the  declarations  were 
made,  are  to  be  shown  to  the  judge,  it  being  his  province,  and 
not  that  of  the  jury,  to  determine  whether  they  are  admissible." 
The  cases  uniformly  hold  that  the  competency  of  such  testimony 
is  to  be  determined  by  tlie  judge,  in  view  of  all  the  surrounding 
and  attendant  circumstances :  MoDaniel  v.  The  Statt\  8  Sm. 
and  M.,  401 ;  J/t7l  v.  The  Commonwealth,  2  Gratt.,  504;  C'oni- 
momoealth  v.  WiUlatnft,  2  Ashni.,  (')!> ;  /ic.c  v.  Sjtllnhury,  7  C. 
and  P.,  IS";  A*'*'  v.  Bonner,  <»  C.  and  P.,  380;  Hex  v.  llucks, 
1  Stark,  llcp.,  r)21. 

The  court  does  not  discharge  this  duty  by  simply  hearing  the 


324 


AMERICAN  CRIMINAL  REPORTS. 


m 


(<( 


ii' 


1'^ 


hv- 


evidence  produced  upon  the  part  of  the  state.  Evidence,  if 
offered,  should  be  received  upon  the  part  of  the  defendant,  and 
it  should  be  weighed  upon  the  determination  of  the  question  of 
admissibility.  The  declarations  of  a  ilyinj?  man  are  admitted  on 
a  supposition  that  in  his  awful  situation,  on  the  confines  of  a 
future  world,  he  had  no  ntotive  to  misrepresont,  but,  on  the  con- 
trary, the  strongest  motives  to  speak  without  disguise  and  with- 
out malice :  Roscoe's  Criminal  Evidenci',  p.  35.  Before  tlie 
judge  decides  the  question  of  admissibility,  he  hears  all  tlie 
deceased  said  respecting  the  danger  'm  which  he  considered  him- 
self, and  he  should  be  satisfied  that  the  declaration  was  made 
under  an  impression  of  almost  immediate  dissolution.  It  is  not 
enough  that  the  deceased  thinks  he  siiall  ultimately  never  recover : 
Phillips  on  Evidence,  Cowen  and  Mill's  Notes,  part  1,  page  252. 
In  the  same  volume  it  is  said,  page  253,  "  We  see  that  compe- 
tency is  a  question  of  fact  for  the  court,  as  in  other  cases.  Tln'y 
are  to  find  upon  it  as  the  jury  do  upon  the  main  case,  taking  into 
view  all  the  circumstances  calculated  to  prove  and  disjirove  tliat 
despair  of  life  which  shall  be  equivalent  to  a  sworn  obligation.''' 
Atid  upon  page  25it,  it  is  said  :  "Upon  this  question  of  fact  no 
rule  can  be  adopted  which  will  reach  every  variety  of  detail. 
The  court  try  the  competency  of  the  deceased  as  the  jury  do  his 
credibility,  and  the  decision  in  either  case  on  a  conflict  of  testi- 
mony, must  be  final."  We  are  satisfied  that  the  court  ought  to 
have  inquired  into  all  the  circumstances  attending  the  declara- 
tions, and  to  have  heard  the  testimony  offered  by  the  defendant, 
before  determining  that  the  declarations  were  comi)etent,  and 
permitting  them  to  go  to  the  jury. 

IIJ.  The  defendant  offered  to  prove,  as  affecting  the  adntissi- 
bility  of  the  declarations  of  deceased,  that  he  was  a  materialist, 
and  that  he  believed  in  no  God  or  future  conscious  existence. 
The  ])ropose(l  proof  was  not  competent  for  the  purpose  of  affect- 
ing the  admissibility  of  the  dying  declarations.  If  Bold  had 
been  alive,  he  would  have  been  a  competent  witness,  although  a 
disbeliever  in  God  and  a  future  state.  Every  human  being  of 
Burticient  capacity  to  understand  the  obligation  of  an  oath,  is  a 
competent  witness  in  this  state:     Code,  §3()3(>. 

IV.  The  defendant,  however,  when  ho  came  to  make  out  his 
defense,  offered  to  prove  the  foregoing  facts,  as  afl'ecting  the 
credibility  of  the  declarations  of  deceased,  and  the  evidence  was 
not  admitted  for  tins  purpose.     In  this  there  was  error.     Under 


,A 


STATE  V.  ELLIOTT. 


325 


the  common  law,  persons  insensible  to  the  olilii^ation  of  an  oath, 
from  defect  of  reli<;iou8  sentiment  and  belief,  were  incompetent 
to  testify  as  witnesses.  The  very  natnre  of  an  oath  presupposes 
that  the  witness  believes  in  the  existence  of  an  Omniscient 
Supreme  Being,  the  rewarder  of  truth,  and  avenger  of  falsehood. 
Atiicists,  therefore,  and  all  infidels,  that  is,  all  those  who  profess 
no  religion  that  can  bind  their  consciences  to  speak  truth,  are,  at 
common  law,  rejected  as  incompetent  to  testify :  1  Greenleaf, 
section  368.  Our  Code,  section  3037,  provides  :  "  Facts  which 
have  heretofore  caused  the  exclusion  of  testimony  may  still  be 
shown  for  the  purpose  of  lessening  its  credibilty."  If  Bold  had 
been  offered  as  a  witness,  it  is  very  clear  that  the  proposed  proof 
would  have  been  competent  for  the  purpose  of  affecting  his 
credibility. 

But  dying  declarations  are  open  to  direct  contradiction  in  the 
same  manner  as  any  other  part  of  the  case  for  the  prosecution, 
and  the  prisoner  is  at  liberty  to  prove  that  the  deceased  was  not 
of  such  a  character  as  was  likely  to  be  impressed  with  a  religious 
souse  of  his  approaching  dissolution,  and  that  no  reliance  is  to  be 
placed  on  his  dying  declarations  :  Roscoe's  Criminal  Evidence, 
page  35. 

V.  Against  the  objection  of  defendant,  the  court  per- 
mitted an  affidavit  nuide  by  John  N.  Bold,  before  Lemuel  War- 
ford,  a  justice  of  the  peace,  to  be  offered  in  evidence.  The  evi- 
dence shows  that  I'old  gave  Warford  the  substance  of  the  affi- 
davit, and  Warford  shaped  it.  About  two-thirds  of  it  is  in  the 
language  of  Bold,  and  tlie  balance  is  in  the  language  of  War- 
ford. It  was  not  read  over  to  Bold  after  he  signed  it.  As  the 
statement  was  neltlier  in  the  language  of  deceased,  nor  read  over 
to  him  before  he  signed  it,  we  thiidc  it  was  iiuidmissible. 

VI.  The  court  rejected  proof  by  defendant  tending  to  show 
that  Bold  had  poisoned  defendant's  flour,  attem])ting  thereby  to 
poison  defendant  and  his  family.  We  think  there  was  no  error 
in  rejecting  this  testimony. 

VII.  The  court  refused  to  permit  defendant  to  prove  acts  and 
conduct  of  defendant  showing  that  he  was  very  much  afraid  of 
Bold,  and  sought  t(j  get  away  from  and  avoid  him.  There  was 
no  error  in  this  ruling, 

VIII.  Evidence  of  threats  made  by  deceased  against  the 
ili'fendant,  but  not  connnnnicated  to  defendant,  was  rejected. 
There  was  proof  of  threats,  however,  which  were  communicated, 


r  : 


!  : 


it! 


■i 


326 


AMERICAN  CRIxMINAL  REPORTS. 


which  brings  the  case  fnlly  within  the  principle  of  State  v.  Wood- 
son, 41  Iowa,  424,  and  renders  the  ruling,  if  erronoi>us.  orror 
without  prejudice.  But  as  the  question  will  probably  ari.sc  upon 
the  re-trial,  we  deem  it  proper  to  determine  it  now.  The  decided 
weight  of  authority  holds  that  threats  uncommunicated  are  inad- 
missible. See  Com.  v.  Frengan,  44  Penn.,  586 ;  Newcouih  ii. 
State,  37  Miss.,  383 ;  Powell  v.  State,  19  Ala.,  577 ;  Colcer  v. 
State,  20  Ark.,  53 ;  Atkins  v.  State,  16  Ark.,  568  ;  Ginijo  v. 
State,  29  Geo.,  470 ;  State  v.  Dumphey,  4  Minn.,  438 ;  Stale  v, 
Gregor,  21  La.  Ann.,  473 ;  State  v.  Jackson,  17  Miss.,  544.  The 
only  exception  to  the  rule  seems  to  be  that,  where  evidence  had 
been  given  making  it  a  question  whether  the  defendant  had  per- 
petrated the  act  in  defense  of  his  person  against  an  attempt  to 
murder  him,  or  inflict  some  great  bodily  harm  upon  him,  violent 
threats  made  by  deceased  against  the  defendant  a  short  time 
before  the  occurrence,  may  be  proved,  though  not  communicated : 
Stokes  V.  The  People,  53  N.  Y.,  164.  The  threats  offered  to  be 
proved  in  this  case,  do  not  fall  within  this  principle.  We  think 
they  were  properly  rejected. 

IX.  The  defendant  asked  fifty-three  instructions,  all  of  which 
were  refused.  The  court  gave  thirty-five  instructions.  Many' 
objections  are  urged  to  the  instructions  given,  and  to  the  refut;al 
to  give  those  asked.  It  would  extend  this  opinion  to  an  undesir- 
able length  were  we  to  take  up  and  consider  seriatim  all  those 
objections.  Tlie  charge  of  the  court  is  very  full,  dear  and 
explicit,  and,  taken  together,  very  fairly  pn^seiits  tlie  law  <»!'  tlio 
case.  If  any  portion  of  it  fails  to  sufHcMcntly  (pialify  or  extend 
the  doctrines  presented,  it  is  likely  that  the  learned  judge  who 
tried  the  case  will  himself  make  the  proper  cori'ections  u])oii  the 
retrial. 

For  the  errors  discussed,  the  judgment  is  reversed. 


'■I ' 


-  i ;%; 


Al^iiiL 


State  v.  IIakdie. 
(JT  lowii,  (i47.) 

Homicide:    Mandaurjlder — Ci'iiniihil.  C'lrflrHmcmt  in  vse  of  a  renoher — Inninie- 

ttonx  U>  jury. 

It  appeared  that  the  defendant,  intendinii;  merely  to  frighten  the  dec(!ascd, 
discluirured  a  revolver  at  her  and  infMctcsd  u  mortttl  wound.  The  revol- 
ver had  one  load  in  it,  hut  the  di4(!iidairt  luul  reason  to  helieve,  and 
did  believe,  lliat  it  would  not  go  off.     UM,  that  on  sueh  fads  no  jury 


^Vood- 
error 
ni)on 


STATE  V.  ELLIOTT. 


327 


would  be  warranted  in  finding  that  a  man  of  ordinary  prudence  could  so 
conduct  himself,  and  that  a  request  to  charge,  based  on  that  assumption, 
was  properly  refusr;d. 
The  court  charged  tlie  jury  as  follows:  "And  in  this  case  I  submit  to  you  to 
find  the  facts  of  recklessness  and  carelessness  under  the  evidence;  and  if 
you  find  that  the  death  of  the  party  was  occasioned  through  the  recklessness 
and  carelessness  of  the  defendant,  then  you  should  convict  him  («.  e.,  of 
nianslaugliter),  and,  if  not,  you  should  acquit.  And  by  this  I  do  not 
mean  that  defendant  is  to  be  held  to  the  highest  degree  of  care  and  pru- 
dence in  liandling  a  dangerous  and  deadly  weapon,  but  only  such  care  as 
a  reasonably  prudent  man  should  and  ought  to  use  under  like  circum- 
stances, and  if  he  did  not  use  such  care  he  should  be  convicted,  other- 
wise he  should  be  acquitted. "  IIiM,  that  this  instruction  was  quite  as 
favorable  as  the  defendant  was  entitled  to. 


KoTiiRocK,  Ch.  J.  I.  It  apper.rs,  from  tlie  evidence,  that 
tlie  defendant  was  a  boarder  in  the  family  of  one  Gantz, 
who  is  his  brotlier-in-law.  On  tlie  day  of  the  homicide  defend- 
ant was  engaged  in  varnishing  fnrniture.  Mrs.  Sutfen,  a  neigh- 
bor, called  at  the  honse,  and,  after  some  friendly  conversation, 
she  went  into  the  kitchen.  When  she  came  back  defendant 
picked  up  a  tack  hammer  and  strnck  on  the  door.  She  said, 
"My  God,  I  thought  it  was  a  revolver."  A  short  time  after- 
wards she  went  into  the  yard  to  get  a  kitten.  Defendant  said  he 
would  frighten  her  with  the  revolver  as  she  came  in.  He  took 
a  revolver  from  a  stand-drawer  and  went  out  of  the  room,  and 
was  in  the  kitchen  when  the  revolver  was  discharged.  He 
iinmodiately  came  in  and  said  to  Mrs.  Gantz,  his  sister,  "My 
(rod.  Ilinmah,  come  and  see  what  1  have  done."  His  sister  went 
out  and  found  Mrs.  Sutfen  lying  on  the  sidewalk  at  the  side  of  the 
house,  with  a  gun-shot  wound  in  the  head,  and  in  a  dying  condi- 
tion. A  ])hyfiician  was  immediately  called  and  made  an  examina- 
tion of  the  deceased,  took  the  revolver  from  the  defendant,  and 
informed  him  that  nothing  could  be  done  for  the  deceased, 
whereupon  the  defendant  became  violent,  said  the  shot  was  acci- 
dental, and  exclaimed  several  times  that  he  would  kill  himself. 
It  became  necessary  to  secure  him,  wliich  was  done  by  tying 
him  with  rojies. 

The  revolver  had  been  in  the  house  for  about  five  3'ear8.  It 
was  found  by  Gantz  in  the  road.  There  was  one  load  in  it  when 
found.  Some  six  months  after  it  was  found,  Gantz  tried  to  shoot 
the  load  from  it  and  it  would  not  go  oflf.  He  tried  to  punch  the 
load  out,  but  could  not  move  it.  lie  then  laid  it  away,  thinking 
it  was  harmless. 


328 


AJIEUICAN  CRIMINAL  RLPOIITS. 


i;i 


(1% 

6 

if 

} 

i;l 

:>' 

1 , 

. 

1. 

ihl 


Tlie  defendant  was  about  tlie  liouse  and  know  the  condition  of 
the  rovolver.  Upon  one  occasion  Gantz  said  lie  would  try  to 
kill  a  cat  with  the  revolver.  The  defendant  hein^  present,  said 
he  would  not  be  afraid  to  allow  it  to  be  snapped  at  him  all  day. 
The  revolver  remained  in  the  same  condition  that  it  was  when 
found,  no  other  load  having  been  put  into  it,  and  it  was  (!onsi(l- 
ered  by  the  family,  as  well  iis  defendant,  as  entirely  harmless. 

The  foregoing  is  the  substance  of  all  the  evidence. 

The  state  did  not  claim  that  the  defendant  was  gnilty  of  mur- 
der, but  that  he  was  guilty  of  manslaughter,  because  of  criminal 
carelessness.  The  defendant  insisted  that  there  was  no  sucii 
carelessness  as  to  render  the  act  criminal,  and  that  it  was  honil- 
cide  by  misadvojiture,  and  therefore  excusable. 

The  court  instructed  the  jury  as  follows:  "5.  And  on  the 
charge  of  manslaughter,  I  instruct  you  that  if  the  defendant 
\ised  a  dangerous  and  deadly  weapon,  in  a  careless  and  reckless 
manner,  by  reason  of  which  instrument  so  used  he  killed  the 
deceased,  then  he  is  guilty  of  manslaughter,  iilthough  no  hnnn 
was  in  fact  intended."  Other  instructions  of  like  import  were 
given,  and  the  cpiestion  of  criminal  carelessness  was  submitted  to 
the  jury  as  follows :  "8.  And  in  this  case  I  submit  to  you  to 
Und  the  facts  of  recklessness  and  carolessness  under  the  evidence, 
and  if  you  find  that  the  death  of  the  party  was  occasioned 
tliruu<;h  recklessness  and  carelessness  of  the  defendant,  then  vou 
should  convict  him,  and,  if  not,  you  should  acquit.  And  by 
this  I  do  not  mean  that  defendant  is  to  be  held  to  the  highest 
degree  of  care  and  ])ru(lence  in  handling  a  dangerous  and  deadly 
weapon,  but  only  such  care  as  a  reasonably  prudent  man  should 
and  ought  to  use  under  like  circumstances ;  and  if  he  did  not 
use  such  care  he  should  be  convicted;  otherwise  he  should  be 
acquitted." 

There  can  be  no  doubt  that  the  instructions  given  by  the  court 
embody  the  correct  rule  as  to  criminal  carelessness  in  the  use  of 
a  deadly  weapon.  Counsel  for  defendant  insist  that  the  instruc- 
tions of  the  court  do  not  go  far  enough,  ami,  upon  the  trial, 
asked  that  the  court  give  to  the  jury  the  following  instruction; 

"3.  Although  the  deceased  came  to  her  death  from  the  dis- 
charge of  a  pistol  in  the  hands  of  the  defendant,  yet,  if  the 
defendant  had  good  reason  to  l)elieve,  and  did  believe,  that  the 
pistol  which  caused  her  death  was  not  in  any  manner  dangerous, 
but  was  entirely  harmless,  and  it'  he  did  nothing  more  than  a 


cox  V.  PEOPLE. 


329 


man  of  ordinary  prudence  and  cantion  might  have  done  under 
like  circumstances,  then  the  jury  should  find  him  not  criminally 
liable,  and  should  acquit." 

This  instruction,  and  others  of  like  import,  were  refused  by 
the  court,  and  we  think  the  ruling  was  correct. 

That  the  revolver  was,  in  fact,  a  deadly  weapon,  is  conelu- 
sively  shown  by  the  terrible  tragedy  consequent  upon  defend- 
ant's act  in  tiring  it  off.  If  it  had  been,  in  fact,  unloaded,  no 
homicide  would  have  resulted,  but  the  defendant  would  have 
been  justly  censurable  for  a  most  reckless  and  imprudent  act,  in 
frightening  a  woman  by  pretending  that  it  was  loaded,  and  that 
he  was  about  to  discharge  it  at  her, 

No  jury  would  be  warranted  in.  finding  that  men  of  ordinary 
prudence  so  conduct  themselves.  On  the  contrary,  such  con- 
duct is  grossly  reckless  and  reprehensible,  and  without  palliation 
or  excuse.  Human  life  is  not  to  be  sported  with  by  the  use  of 
tire-arms,  even  though  the  person  using  them  may  have  good 
reason  to  believe  that  the  weapon  used  is  not  loaded,  or  that, 
being  loaded,  it  will  do  no  injury.  When  persons  engage  in 
such  reckless  sport  they  should  be  held  liable  for  the  consequence 
of  their  acts. 

II.  It  is  argued  that  the  evidence  does  not  show  the  defend- 
ant guilty  of  criminal  carelessness,  because  it  does  not  appear 
that  the  defendant  pointed  the  pistol  at  the  deceased,  or  how  it 
happened  to  be  discharged.  The  fact  that  defendant  took  the 
weapon  from  the  drawer  with  the  avowed  purpose  of  frighten- 
ing the  deceased,  and  while  in  his  hands  it  was  discharged,  with 
fatal  ert'cct,  together  with  his  admission  that  he  did  the  act,  fully 
warranted  the  jury  in  finding  that  he  purposely  pointed  the 
pistol  and  discharged  it  at  the  deceased. 

Affirmed. 


,  \ 


M 


Cox  V.  Pkuit-e. 

(82111.,  191.) 

Incest:    Attempt  by  solicitation  —  Statute  constrved. 


lu  Illinois  a  bare  solicitation  to  commit  incest  is  not  indictable.  Such  a 
solicitntion  is  not  an  attcmiit  within  the  meaning  of  the  statute. 

It  seems  that,  un»ler  tiie  statute,  "  whoever  attempts  to  commit  any  offense 
prohibited  by  law,  and  does  any  act  towards  it,  but  fails,"  etc.,  "a  bare 
solicitation  is  not  an  attempt,  except  it  be  such  a  solicitation  whose 


i 


I 


r« 


330  AilERICAN  CRLMINAL  REPORTS. 

immediate  tendency  is  to  provoke  a  breacli  of  tlie  peace,  as  a  diallenire 
to  fljiht,  or  to  tlie  obstruction  of  or  interference  witli  public  justice,  as 
where  perjury  is  advised,"  etc. 

Per  Curiam.  The  indictment  contains  two  counts.  In  the 
first,  the  defendant  is  charp;ed  with  incest ;  and,  in  the  second,  he 
ie  cliarged  witlt  an  assault  with  intent  to  connnit  incest. 

The  verdict  of  the  jury  is :  "  We,  the  jury,  find  the  defend- 
ant guilty  of  an  attempt  to  commit  incest  with  Caroline  Rider, 
under  the  first  cotmt  of  the  indictment,  and  assess  his  punish- 
ment at  imprisonment  in  the  penitentiary  for  the  term  of  two 
years." 

The  crime  of  incest  is  punishable,  if  it  be  by  a  father  coliMliit- 
ing  with  his  daughter,  by  confinement  in  the  penitentiary  for 
any  term  not  exceeding  twenty  years ;  and,  if  it  be  by  colialtitiiig 
between  other  persons,  within  the  degrees  of  consiiiiguinity 
within  which  marriages  are  declared  by  law  to  be  iiict-'stiKjus 
and  void,  by  confinement  in  the  penitentiary  for  a  turiu  not 
exceeditig  ten  years :     R.  L.  1874,  p.  376,  sees.  15t!,  157. 

And,  by  another  section  of  the  Criminal  Code :  "  Whoever 
attempts  to  commit  any  offense  prohibited  by  law,  and  dues  any 
act  towards  it,  but  fails,  or  is  intercepted  or  prevented  in  its 
execution,  where  no  express  provision  is  made  b}'  law  for  tlni 
punishment  of  such  attempt,  shall  be  punished,  where  the  offeii>e 
thus  attempted  is  a  felony,  by  imprisoiime'  t  in  ii^  |)enitentiary 
not  less  than  one  nor  more  than  fivr  in  all  otlur  cases,  hy 

fine  not  exceeding  $300,  or  by  con  ,  iit  in  the  cc   ity  jail  not 

exceeding  six  months:"     R.  L.  lb.      p.  393.  sec.  2To. 

It  ''s  nut  claiuied,  nor  is  there  any  exprc—  provision  made  by 
the  Criminal  Code  for  the  punishment  of  an  attempt  to  commit 
incest,  so  that  the  defendant's  case  is  brought  within  this  sectiu!" 
if  he  is  liable  at  all.  The  evidence  shows,  simply,  an  unsuccess- 
ful solicitation  to  commit  the  offense,  and  the  question,  tiiereforo 
is,  does  a  bare  solicitation  constitute  an  attempt,  within  the 
meaning  of  the  section  ? 

Wharton,  in  discussing  whether  solicitations  to  commit  are 
independently  indictable,  in  the  second  volume  of  his  work  on 
Criminal  Law  (7th  ed.),  in  section  2(!91,  says :  "  They  certainly 
are,  *  *  *  where  their  object  is  to  provoke  a  breach  of  the 
public  peace,  as  is  the  case  with  challenges  to  fight  and  seditious 
addresses.  They  are  also  indictal»le  where  their  object  is  inter- 
ference witli  public  justice,  as  where  resistance  to  the  execution 


STATE  V.  KEESLER 


831 


of  a  judicial  writ  is  counseled,  or  perjury  is  advised,  or  the 
escape  of  a  prisoner  is  encouraged,  or  tbo  corruption  of  a  pub- 
lic officer  ie  sought.  *  *  *  But  if  the  offense  be  not 
consummated,  and  if  it  be  not  of  such  a  character  that  its  solici- 
tation tends  to  a  breach  of  the  peace,  or  the  corruption  of  the 
body  politic,  the  question  whether  the  solicitation  is  by  itself  the 
subject  of  penal  prosecution,  must  be  answered  in  the  negative." 
See,  also,  Smith  v.  Com.,  54  Penn.  St.,  209 ;  Com.  v.  Willard, 
22  Pickering,  476, 

We  are  of  opinion  that  this  is  the  better  view  of  the  law, 
although  there  are  respectable  authorities  holding  a  different 
rule ;  and,  reading  the  section  quoted  in  the  light  of  it,  the 
words,  "  Whoever  attempts  to  commit  any  offense  prohibited  by 
law,  and  does  any  act  towards  it,"  must  be  construed,  in  cases 
like  the  present,  to  mean  a  physical  act,  as  contradistinguished 
from  a  verbal  declaration;  that  is,  it  must  be  a  step  taken 
towards  the  commission  of  the  offense,  and  not  a  mere  effort,  by 
persuasion,  to  produce  the  condition  of  mind  essential  to  the 
commission  of  the  offense. 

We  are,  therefore,  of  opinion  there  was  error,  both  in  giving 
instructions  at  the  instance  of  the  people,  and  in  refusing  those 
asked  by  the  defendant,  for  which  the  judgment  should  be 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


1 

\ 

'I 


Statk  v.  Kkksi.er. 

(78  N.  C,  489.) 

Incest. 

Incest  is  nut  nn  indictable  offense  at  common  law,  and  where  there  is  no 
stntutn  itgainst  it,  it  is  not  a  criminal  offense. 

Btkum,  J.  The  defendant  is  indicted  for  incest.  Tliis  offense 
was  not  indictable  at  common  law.  and  as  we  have  no  statute  in 
this  state  declaring  it  to  be  a  criminal  offense,  this  indictment 
cannot  be  maintained.  It  is  related  that  in  the  time  of  the  Com- 
monwealth in  England,  when  the  ruling  powers  found  it  for 
their  interest  to  put  on  the  semblance  of  extraordinary  strictness 
and  purity  of  niorak,  incest  and  willful  adultery  were  made  capital 
crimes ;  but  at  the  Restoration,  when  men  from  the  abhorrence 


Hiif 


332 


AMERICAN  CRBIINAL  REPORTS. 


•.-T:- 


.'.  \l 


of  the  hypocriay  of  the  late  times  fell  into  a  contrary  extreme  of 
licentiousness,  it  was  not  thought  proper  to  renew  the  law  of 
such  unfashionable  rigor;  and  these  offenses  have  been  ever 
since  left  to  the  feeble  coercion  of  the  spiritual  court  according 
to  the  canon  law :  4  Bl.,  (54 ;  2  Tomlin.  L.  D.,  160 ;  Bish.  Stat. 
Cr.,  sections  725,  728 ;  Bish.  Mar.  &  Div.,  sections  313,  315. 
In  most  of  the  states  of  the  Union  incest  is  made  an  indictable 
offense  by  statute.  Perhaps  its  rare  occurrence  in  this  state  has 
caused  the  revolting  crime  to  pass  unnoticed  by  the  legislature. 

No  error. 

Per  Cubiam.  Judgment  affinned. 


.EKRirORY 


v.  Paul. 


(2  Mont.  Ter.,  314.) 

Larcuny:    Reputation  —  Tmpfdching  witness — Defective  charge —  Wife  of 

co-rcHpondeiit  as  witness. 

Where  it  appears  iininnntively  by  the  testimony  of  an  impeaching  witness, 
that  lie  luis  some  Ivnowledgo  of  tiie  reputation  of  a  witness,  whose  rcjiuta- 
tion  for  veracity  he  is  called  to  discredit,  it  is  error  for  tlic  court  to  reject 
his  testimony  as  to  that  rei)utation  on  the  ground  lliat  his  knowledge  of 
that  reputation  is  not  sulHcient.  It  is  for  tlie  jury  to  judge  of  the  weight 
of  the  testimony. 

An  impeaching  witness  may  he  cross-examined  by  tiie  adverse  party  as  to  the 
extent  and  sources  of  Ids  knowledge,  before  testifying  to  tiie  reputation 
of  the  witness  he  is  called  to  impeacli. 

If  the  court  in  a  distinct  proposil ion  states  to  the  jury  on  what  facts  llicy  may 
find  the  defendant  guilty,  and  in  that  proposition  entirely  omits  to  direct 
the  attention  of  the  jury  to  tlie  necessity  of  finding  a  felonious  intent,  it 
is  error,  allliough  the  court  has  in  another  part  of  tlie  charge  stated  the 
law  of  larceny  fully  and  correctly. 

The  wife  of  a  respondent  is  not  a  (iompelent  witness  for  a  co-respondent, 
who  is  being  tried  at  the  same  time. 

Knowles,  J.  The  principal  assignment  of  ermr  in  this  case 
is  the  rejection,  by  the  court,  of  the  testimony  of  Wortliitigtoii, 
M'Uo  was  called  by  the  defendants  for  the  jiurposo  of  imjieacliiiig 
the  witness  for  the  territory,  AIcDDiigal.  Counsel  for  the  dot'ciise 
introduced  the  witness  Worthingtoii,  and  tisked  him  the  follow- 
ing questions : 

"1.  Are  you  acquainted  with  the  general  reputation  of  the 
witness  ^[('|)o^lgal,  in  the  iieighboriiood  where  he  lives,  for  truth 
and  veracity?"     Answer,  "I  am.'' 


TERRITORY  e.  PAUL. 


833 


"  2.    Is  that  reputation  good  or  bad  ?" 

Tliis  question  was  objected  to  by  the  prosecution,  and  the 
objection  sustained. 

"  3.  From  what  you  know  of  his  general  reputation  for  truth 
and  veracity,  in  the  neighborhood  in  which  he  lives,  would  you 
believe  him  under  oath  ?" 

This  question  was  objected  to  by  the  prosecution,  and  the 
court  sustained  the  objection,  and  the  defendants  excepted. 
When  the  iirst  question  was  answered,  the  prosecution  claimed 
the  privilege  of  cross-examining  Worthington,  for  the  purpose 
of  showing  tliat  he  did  not  have  knowledge  sufficient  of  the  gen- 
eral character  of  Mc^Dougal,  in  the  neighborhood  where  he  lived, 
to  entitle  him  to  testify  as  to  his  general  character  for  truth  and 
veracity.  Tiiis  was  granted,  and  upon  this  cross-examination  the 
witness  said :  "  Tliat  there  were  about  seventy-five  people  residing 
in  ttie  vicinity  of  M(',Dt)Ugal  who  would  be  competent  to  testify  in 
any  case ;  that  he  had  never  known  but  thirteen  out  of  that  num- 
ber even  speak  of  the  character  of  tlie  witness  for  truth  and 
veracity ;  that  a  Mr.  Relcher  was  one  of  them,  and  that  he  said 
in  his  own  house,  in  July,  1872,  that  McDougal  was  a  bad  man, 
a  drunkard  and  a  thief."  "  This  was  when  I  had  McDougal 
arrested  for  robbery.  The  court  then  permitted  the  prosecution 
to  introduce  said  Belcher,  as  a  witness  to  the  above  cotiversation 
with  the  impeaching  witness.  This  was  objected  to  by  the 
defense.  Belcher  said:  "That  he  had  no  recollection  of  ever 
liaving  any  conversation  with  the  witness  Worthington  relative 
to  the  character  of  McDougal  for  truth,  and  would  have  remem- 
bered it  if  he  ever  had."  The  court  held  that  Worthington  had 
not  shown  sufficient  knowledge  of  the  reputation  of  McDougal 
for  truth  and  veracity  to  entitle  him  to  testify  concerning  the 
Biiuie. 

The  general  rule  in  the  text-books  tliat  treat  upon  the  impeach- 
ment of  a  witness  wliose  reputation  for  truth  and  veracity  is  in 
queistion,  is  tiiis  :  The  witness  must  be  asked  :  "  Do  you  know 
the  general  reputation  of  the  witness  for  truth  and  veracity  in 
the  neighborhood  where  he  lives?"  If  the  answer  be  in  the 
afiirinativo  to  this  question,  and  not  otherwise,  then  the  futtlier 
question  may  be  asked  :  "What  is  tliat  reputation  f  The  Eng- 
lish text-books  say  it  is  projier  to  ask  the  witness,  if  he  says  this 
reputation  is  bad :  "  From  what  you  know  of  this  reputation, 
Would  you  believe  the  witness  uiuleroath?" 


.il 


■^ 

:U 

' 

•^M 

--■   •            i 

-'^r 

i  ^          H 

;   Is 

:■■■* 

■  i ; 

*  1 

•r 

•  \ 

'il 

i  ■■■      ^  : 

i  'f  f 

■  ■  , 

■ 
iii; 

!•! 

i    ^ 

i    ' 


!!^ 


334 


AMERICAN  CRIMINAL  REPORTS. 


1^ 


^\ 


'I; 


•I* 


m 


Some  American  authorities  sustain  the  same  rule.  Although 
the  question  does  not  seem  to  have  been  considered  much, 
whether  the  party  whose  witness  is  sought  to  be  impeaclied 
should  have  the  right  to  cross-examine  the  impeaching  witness, 
as  to  his  knowledge  of  the  general  reputation  of  the  witness 
whose  character  for  truth  and  veracity  is  questioned,  it  would 
seem  that  the  right  to  cross-examine  an  impeaching  witness 
should  be  as  completely  recognized  as  the  right  to  cross-examine 
any  other  witness.  This  has  been  the  general  practice  of  tlie 
courts  in  this  territory.  Whether,  if  it  should  appear  from  tlie 
cross-examination  of  the  imj)eaching  witness  that  lie  lias  no 
knowledge  of  the  general  reputation,  for  truth  and  veracity,  of  a 
witness  that  is  sought  to  be  impeached,  the  court  should  have  the 
power  to  exclude  ms  evidence,  is  a  question  upon  whicli  I 
have  seen  no  authority.  Is  the  fact  as  to  whether  a  witness 
has  sufficient  knowledge  of  the  genei-al  reputation  of  another  wit- 
ness for  truth  and  veracity,  for  the  court  or  jury  ?  If  a  witness 
answers  that  he  has  no  knowledge  of  the  geiieral  reputation  of 
another  witness  for  truth  and  veracity,  it  would  be  wrong  to 
allow  him  to  testify  to  what  that  rej)utatioti  was,  and  the  court 
has  the  power  to  stop  the  examination  of  such  a  witness,  if  a 
witness  should  show,  in  cross-examination,  that  he  had  no  knowl- 
edge of  the  general  reputation  of  a  witness  sought  to  l)e 
impeached,  for  truth  and  veracity,  it  would  seem  that  the  Cdurt 
ought  to  have  the  power  to  say  that  a  man  could  not  be  impciichcd 
by  any  such  witness.  AVlien  a  witness  shows  he  has  some  kn^u  I- 
edge  of  a  man's  character,  for  truth  and  veracity,  in  the  lU'lirh- 
borhood  where  he  lives,  I  think  the  rule  should  be,  that  the  jnry 
must  judge  as  to  the  weight  to  be  given  to  iiis  testimony.  To 
hold,  in  all  cases,  the  court  should  determine,  from  the  testimony 
of  a  witness,  whether  he  had  sutlicieiit  knowledge  of  a  man's 
general  character,  for  truth  and  veracity,  would  make  it  the 
arbiter  of  a  question  of  fact.  It  was  contended  that  an  impeach- 
ing witness  occupied  the  position  of  an  expert,  as  to  character 
for  truth  and  veracity. 

There  are  some  analogies  between  the  two  classes  of  witnesses. 
When  an  expert  is  introduced,  no  one  wo\il(l  contend  that  it  was 
the  province  of  the  court  to  determine  whether  he  had  sullicieiit 
Tcnowlege  of  the  subject  upon  which  he  was  called  to  testify,  to 
permit  his  evidence  to  go  to  the  jury.  If  a  physicuan  shoiild 
be  called  upon  to  testify  to  a  medical  point,  it  would  not  bo  the 


m 


- ^ 


TERRITORY  v.  PAUL. 


835 


)o  the 


province  of  tlie  court  to  determine  wliether  he  had  sufficient 
knowledge  of  his  profession  to  permit  him  to  testify  in  regard 
thereto.  The  witness  may  be  cross-examined  as  to  his  medical 
knowledge,  and  the  jury  must  judge  of  his  capacity  to  testify  to 
such  a  point. 

We  lind  the   witness  Worthiiigton  did   say,  "that  he   was 
acquainted  with  the  general  reputation  of  the  witness  McDougal, 
for  truth  and  veracity,  in  the  neighborhood  where  he  lived,  and 
that  he  had  heard  some  thirteen  persons,  neighbors  of  the  said 
McDougal,  speak  of  his  reputation  for  truth  and  veracity  ;  that 
there  were  some  seventy-five  persons  competent  to  testify  in  any 
Ciise,  who  lived  in  the  neighborhood  of  McDougal."     The  court, 
having  no  power  to  determine  whether  a  man  has  sufficient  knowl- 
edge of  a  witness's  general  reputation  for  truth  and  veracity  where 
he  has  some,  erred  in  excluding  the  testimony  of  Worthington. 
The  court  had  no  right  to  say  whether  a  man  can  receive  suffi- 
cient information  from  thirteen  men  in  a  witness's  neighborhood 
as  to  his  general  reputation  for  truth  and  veracity.     If  thirteen 
men  would  not  be  sufficient  to  impart  such  information,  how 
many  would  ?     The  testimony  of  Worthington  to  his  conversa- 
tion witli  Belcher  does  not  seem  to  have  been  upon  McDougal's 
reputation  for  truth  and  veracity.     The  introduction  of  Belcher 
to  contradict  Wortiiington  upon  this  point  seems  to  have  had 
for  its  object  the  giving  to  the  court  information  to  enable  it  to 
decide  whether  Wortiiington  did  have  sufficient  information  as 
to  the  general  rejmtation  for  truth  and  veracity  of  McDougal, 
to  permit  him  to  testify  in  relation  thereto.     This  introduction 
of  Belcher  shows  the  position  assumed  by  the  court  in  relation  to 
this  matter,  that  it,  and  not  the  jury,  should  determine  whether 
Worthington  had  sufficient  knowledge  of  the  general  reputation 
of  McDougal  for  truth  and  veracity  in  the  neighborhood  where 
he  lived  to  allow  him  to  testify  in  regard  thereto.     This  was 
error. 

The  second  exception  is  to  the  following  part  of  the  judge's 
chiirge  to  the  jury  :  "  I  further  say  to  you,  gentlemen,  as  a  fur- 
tiicr  matter  of  law  for  your  application  to  the  proof,  that  if  you 
should  find  from  the  proof  that,  although  the  defendant  William 
Barnes  did  not,  with  the  defendant  Paul,  kill  the  ox  in  question, 
hut  that  he  did  join  with  A.  W.  McDougal  in  so  doing,  knowing 
the  same  was  not  the  property  of  McDougal,  and  shall  further 
tind  that  Addison  Myers  was  the  owner  thereof,  then  you  should 


# 


iij; 


WTwWT 


336 


AMERICAN  CRIMINAL  REPORTS. 


f,: 


!' 


if 


find  the  defend.ant  Barnes  guilty,  altliough  he  ma}'  not  have  then 
known  wlio  was  the  real  owner  of  the  ox  in  question."  Tliere 
can  be  no  doubt  that,  tivken  by  itself,  this  part  of  the  cliargu  is 
wrong.  It  leaves  out  of  view  the  anhaus  fwandl.  To  consti- 
tute larceny,  the  party  eomniitting  the  offense  must  have  the 
view  of  converting  the  property  to  his  own  use  permanently,  or 
depriving  the  owner  of  his  property  permanently.  The  facts 
specified  in  the  above  charge  require,  in  addition  tliereto,  the 
felonious  intent.  Either  liarnes  or  McDougal,  of  which  Barnes 
had  knowledge,  must  have  intended  to  make  this  ox  their  prop- 
erty, or  deprive  the  owner  of  the  same  permanently.  It  is  true, 
that  in  other  parts  of  the  charge,  the  court  sufiiciently  defines 
the  crime  of  larceny,  and  sp'^cifies  the  necessary  ingrcdiejits 
thereof.  But  nowhere  does  the  court  call  the  attention  of  the 
jury  to  the  sjiecific  facts  set  forth  in  the  above  charge,  and  make 
the  necessary  additions  to  constitute  the  crime  of  laroemj. 

The  rest  of  the  charge,  save  as  to  the  verdict  the  jury  miglit 
bring  in,  refers  to  the  facts  that  aj)pear  against  Paul  and  ]?ariios 
jointly.  There  was  some  evidence  against  Jiarnes  that  does  not 
bear  with  equal  force  against  Paul.  While  adnntting  that  a 
charge  to  a  jury  should  be  taken  together,  and,  if  it  states  the 
law  correctly,  there  is  no  error,  I  hold  that  as  to  the  facts  speci- 
fied in  this  part  of  the  charge,  the  charge  taken  together,  does 
not  state  the  law,  and  hence,  that  there  was  an  error  stated  by 
the  court. 

The  last  point  I  shall  answer  is  the  refusal  of  the  coiirt  to 
admit  the  testimony  of  the  wife  of  Paul  on  behalf  of  JJarnes. 
A  wife,  where  her  husbantl  and  another  are  jointly  indicted,  can- 
not testify  on  behalf  of  the  other  party,  if  her  testimony  woulil 
have  a  tendency  to  influence  the  case  against  her  husband.  The 
Btatuto  has  not  changed  this  rule.  It  appears  that  Paul  and 
Barnes  were  tried  together,  and  that  the  testimony  of  Mrs.  Paul 
would  contradict  an  important  point  in  the  evidence  of  McDougal, 
and  tend  to  discredit  tlie  testimony  he  had  given  against  her 
husband  Paul,  as  well  as  that  against  Barnes.  I  find  no  error  in 
the  exclusion  of  this  evidence  on  the  part  of  the  court.  The 
judgment  is  reversed. 

Jxulijincnt  reversed. 


Note. — For  auflioritk-s  which  hold  that  the  wife  of  a  roHpondeut  is  not 
B  comiH'tent  witness  for  flic  co-n'siHiiKltiit,  even  though  they  havo  Bi'paratft 
trialfi,  see  U.  S.  v.  Wade,  2  CiaucU  0.  Cl.,  080;  (Jollier  v.  Slate,  30  Ark.,  M; 


'      &  t  .. 


BAKER  V.  STATE. 


337 


Pullen  V.  People,  1  Dougl.  (Mich.),  48;  but  the  Michigan  statute  of  1861 
changes  the  rule,  so  that  now  tlic  wife  of  a  co-defendant  is  a  competent  wit- 
ness; Morrmey  v.  People,  11  Midi.,  337.  The  following  authorities  hold  that 
the  wife  of  one  jointly  indicted  is  a  competent  witness  for  those  indicted  with 
her  husband,  if  they  are  tried  separately:  Thompguii  v.  Com.,  1  Mete.  (Ky.), 
13;  Cormliuav.  Com.,  3Id.,  481;  State  v.  Burnmle,  87  Mo.,  343;  Com.  v.  Man- 
ton,  2  Ashm.  (Pa.),  31;  Workman  v.  State,  4  Sneed  (Tenn.),  425. 


;"•     i    ; 

! 

prop- 


Baker  v.  State. 

(29  Ohio  St.,  184.) 

Larceny  op  Lost  Goods. 

In  a  case  where  the  defendant  is  charged  with  the  larceny  of  lost  goods,  the 
defendant  should  be  convicted,  if  it  appears  that,  when  he  found  them, 
he  intended  to  appropriate  them  to  his  own  use,  having  reasonable 
grounds  for  believing,  at  the  time  of  the  finding,  that  the  owner  could  be 
fouutl. 

In  this  case  tlie  defendant  asked  for  an  acquittal  on  the  wliole 
evidence.  This  was  refused  by  the  trial  court,  and  the  refusal 
was  assigned  for  error. 

McTlvaink,  J.  The  testimony  offered  on  the  trial  below 
shows  that  on  the  evening  of  April  28, 1872,  the  defendant  below 
found,  0!i  a  county  public  road,  at  Van  Wert  county,  a  pocket- 
book  containing  one  ten-dollar  bill,  at  a  point  in  the  road  near 
wliicli  he  had  been  engaged  at  work  during  tlie  day,  and  that  the 
goods  found  had  been  lost  by  the  owner,  Ilinton  Alden,  at  that 
point  a  few  hours  before.  That  Alden,  at  the  time  he  lost  the 
pocket-book,  had  been  detained  at  tliat  point  for  a  short  time, 
and  within  phiin  sight  of  the  defen(hint.  On  the  next  morning 
Aldon,  who  liveil  in  the  immediate  neighborhood,  informed  the 
defendant  of  his  loss,  but  defendant  concealed  the  fact  of  find- 
ing, and  afterwiird  expended  the  money  in  the  purchase  of  cloth- 
ing. A  few  days  after,  the  defendant  admitted  to  a  witness  in 
the  case,  that  lu;  had  found  the  pocket-book,  and  that  he  knew 
the  owner,  and  on  incpilry  why  ho  had  not  returned  the  goods  to 
the  owner,  replied,  "Finders  are  keepers."  It  was  also  shown 
hy  an  admission  of  defendant,  tlmt  the  appearance  of  the  pocket- 
book  at  the  time  ho  found  it,  indicated  that  it  had  been  very 
recently  lost.  The  law  of  this  case  is  well  stated  by  Baron 
Vol,.  II.— 83 


\  1 

'V 

i 

{ \' 

i 

1  ; 

'.if 


m'' 


338 


AMERICAN  CRIMINAL  REPORTS. 


Parke,  in  Reglna  v.  Thurborn,  1  Deniiison  C.  C,  387 ;  also, 
reported  under  the  name  of  Reijina  v.  Wood,  3  Cox  C.  C,  453, 
thus  :  "If  a  man  find  goods  tliat  have  actually  l)ee]i  lost,  or  are 
reasonably  supposed  by  him  to  have  been  lost,  and  ai>]>ro])riate3 
them  with  intent  to  take  the  entire  dominion  over  tliem,  really 
believing,  when  he  takes  them,  that  the  owner  cannot  be  found, 
it  is  not  larceny.  But  if  he  takes,  with  like  intent,  though  lost, 
or  reasonably  supposed  to  be  lost,  but  reasonably  believing  that 
the  owner  can  be  found,  it  is  larceny." 

The  fact,  in  this  case,  that  the  defendant  expended  the  money 
after  he  had  certain  knowledge  of  the  owner,  did  not  render  him 
guilty  of  larceny,  if  the  offense  was  not  complete  before.  The 
loss  and  finding  of  the  goods  were  not  disputed  in  the  court 
below,  but  the  following  questions  were  made  : 

1.  When  the  defendant  first  took  the  goods  upon  the  finding, 
did  he  intend  to  appropriate  them  to  his  own  use  ?  This  ques- 
tion was  fairly  found  against  him,  from  the  fact  of  concealing 
the  finding  when  infonnod  by  the  owner  of  his  loss,  and  from 
his  subsequent  declaration  that,  "  Finders  are  owners." 

2.  Did  he  have  reasonable  grounds  to  believe,  at  the  time  of 
finding  the  goods,  that  the  owner  could  be  found  ?  It  was  sutli- 
ciently  proved  that  the  defendant  knew  that  the  goods  had  been 
recently  lost  before  the  finding,  .and  that  Alden  had  recently 
been  at  the  point  where  he  found  them.  These  facts  constitute 
reasonable  ground  for  believing  that  Alden  was  tlie  owner. 

Jndgtnent  affirmed. 

Note. — On  reviewing  the  authorities,  it  will  be  found  that  in  this  case  tlie 
Supreme  Court  of  Ohio  have  gone  beyond  the  doctrine  laid  down  in  the 
American  cases  on  this  8ul»jcct.  See  Com.  v.  Tilus,  1  Am.  Cr.  Rep.,  416,  and 
note,  p.  418,  where  the  American  cases  on  this  subject  are  collected. 


u'l'ii 


tV 


Statb  v.  Ltmub. 

(26  Ohio  St.,  400.) 

IiAncBMT:    Dog. 

In  Ohio,  as  at  the  common  law,  a  dog  is  not  the  subject  of  larcenj. 

Ekx,  J.     The  defendant  was  indicted  at  the  March  term,  1 872, 
of  the  court  of  common  pleas  of  Logan  county,  for  burglary. 
The  burglary  consisted  of  breaking  and  entering  a  stable  in 


m 


STATE  V.  LV.MLt5. 


339 


the  night  season  with  intent  to  steal  property  of  value  contained 
therein,  to  wit,  a  do<!;  found  therein,  the  property  of  the  owner 
of  the  stable,  of  the  value  of  twenty-five  dollars.  The  defend- 
ant moved  to  quash  the  indictment,  on  the  ground  that  it  did 
not  charge  him  with  the  commission  of  an  offense  which  was 
punishable  by  the  criminal  laws  of  this  state. 

The  court  sustained  the  motion  and  ordered  the  defendant  to 
be  discharged,  holding  "that  there  is  no  law  authorizing  the 
indictment,  and  that  it  does  not  charge  a  crime,  offense,  or  mis- 
demeanor." 

The  prosecuting  attorney  excepted  to  the  ruling  and  decision 
of  the  court,  and  presented  a  bill  of  exceptions,  embodying  the 
indictment,  motion,  ruling  and  decision  of  the  court,  and  the 
exceptions  taken  thereto,  which  was  signed  and  sealed  by  the 
court,  and  made  part  of  the  record  in  the  case. 

The  only  question  presented  by  the  exception  is :  Is  the  steal- 
ing of  a  dog  a  crime  in  this  state? 

The  property  intended  to  be  stolen  by  the  burglar  must  be 
property  of  which  a  larceny  may  be  committed.  We  have  no 
statute  that,  in  express  terms,  declares  a  dog  to  be  the  subject  of 
larceny ;  but  it  is  claimed  that  inasmuch  as  the  right  of  property 
in  dogs  is  j^rotected  by  civil  remedies,  and  as  a  recent  statute  of 
this  state  requires  them  to  be  listed  for  taxation,  they  are  prop- 
erty, and,  therefore,  properly  the  subjects  of  larceny.  We  do 
not  think  so.  Neither  the  fact  that  the  right  of  property  in 
dogs  is  protected  in  this  state  by  civil  remedies,  nor  the  fact  that 
recent  legislation  recpiires  them  to  be  listed  for  taxation,  has 
the  effect  of  enlarging  the  operations  of  the  statutes  defining 
and  punishing  larceny. 

At  the  common  law,  although  it  was  not  a  crime  to  steal  a 
dog,  yet  it  was  such  an  invasion  of  property  as  might  amount  to 
a  civil  injury,  and  be  redressed  by  a  civil  action :  2  Chit.  Black, 
393,  394 ;  1  Bish.  Cr.  Law,  1080.  In  describing  the  property  of 
which  a  larceny,  either  grand  or  petit,  may  bo  committed,  the 
Ftatutes  of  this  state  use  the  words  "  goods  and  chattels."  These 
words  at  the  common  law  have  a  settled  and  well-defined  ni(>an- 
ing,  ami  wheii  used  in  statutes  defining  larceny,  are  to  be  under- 
Btood  as  meaning  such  goods  and  chattels  as  were  esteemed  at  the 
C(»!iini(m  law  to  l»o  the  subjects  of  larceny.  As  dogs,  at  the  com- 
mon law,  were  held  not  to  be  the  subjects  of  larceny,  they  are 


:i:| 


d: 


f 


340 


AMERICAN  CRIMINAL  REPORTS. 


'I 


not  included  in  the  words  "  goods  and  chattels,"  as  used  in  the 
statutes  referred  to. 

Bonds,  bills,  notes,  etc.,  are  goods  and  chattels,  and  yet,  as  tliev 
were  held  not  to  be  the  subjects  of  larceny  at  common  law,  it  was 
deemed  necessiiry  to  so  enlarge  the  larceny  statutes  ari  to  declaro 
the  stealing  or  mal.cious  destruction  of  them  punishable  in  the 
same  manner,  and  to  the  same  extent,  as  the  larceny  of  moiioy, 
or  other  goods  and  chattels  of  the  same  value.  So  with  do^f:. 
It  will  be  time  enough  for  the  courts  to  say  that  a  dog  is  the 
subject,  of  larceny  when  the  law-making  power  of  the  state  li;u« 
so  declared.  "Constructive  crimes  are  odious  and  dangerous:'* 
Findlay  v.  Bean,  8  Serg.  and  Rawle,  .571. 

We  are,  therefore,  of  opinion,  that  the  court  of  common  pleas 
did  not  err  in  the  ruling  and  decision  excepted  to. 

Exceptions  overruled. 

White,  and  McIlvaink,  J.T.,  concurred. 

Welch,  C.  J.,  and  Gilmoke,  J.,  dissented. 

Note.— It  was  held,  in  People  r.  Campbell,  4  Park  (N.  Y.)  Cr.,  386,  tbat  a 
dog  is  the  subject  of  larceny  in  New  York. 


1 


Bauton  v.  State. 

(29  Ark..  68.) 

Lakcent  :    Indictment  —  DtKcription  of  money. 

An  indictment  for  the  larceny  of  money,  which  simply  charges  the  sfealinc;  of 
"one  Imndred  and  thirty  dolliUH,"  without  any  specific  description  ol  \\w 
kind  of  money,  is  bad  on  motion  in  arrest  of  judgment. 

English,  C  J.  The  a])peihint  was  indicted  in  the  criminal 
court  of  Pulaski  county,  as  follows: 

"The  grand  jury  of  Puhiiiki  county,  in  the  name  .-ind  by  tlie 
authority  of  the  state  of  Arkansas,  accuse  .lolin  Barton  of  the 
crinie  of  larceny,  conuiiittcd  as  follows,  viz.:  The  said  .lolm 
JJarton,  on  the  ninth  day  ol'  'luly,  A.  D.  1872,  in  the  county  and 
state  iiforesaid,  one  huniired  iind  thirty  dollars,  the  pro[)erty  of 
Joseph  Schaer,  from  the  person  of  the  said  .loseph  Sliacr,  then 
and  there  feloniously  did  take,  steal  and  carry  away,  against  the 
peace  and  dignity  of  the  state  of  Arkansas." 

The  appellant  entered  a  demurrer  to  the  iudictmont — in  short. 
upon  tlie  record — wiiich  he  subsequently  withdrew,  and  pleaded 


'  s 


All 


I'll  .'■' 


BARTON  V.  STATE. 


341 


not  jruilty.  He  was  tried  by  a  jury,  found  guilty,  and  moved  in 
arrest  of  judgment,  on  the  ground  that  the  facts  stated  in  the 
indictment  did  not  constitute  a  public  offense.  The  motion  was 
overruled,  and  he  was  sentenced  to  the  penitentiary. 

The  oI)jection  to  the  indictment  is,  that  it  does  not  specifically 
describe  the  money  alleged  to  have  been  stolen. 

The  appellant  is  charged  with  stealing  "one  hundred  and 
tliirty  dollars,"  etc.  Whether  the  subject  of  the  larceny  was 
coin,  United  States  treasury  notes,  or  bank-notes,  is  not  alleged. 

If  the  term  "dollars"  may  be  said  to  have  a  legal  meaning, 
and  to  import  the  national  coin  {liowe  v.  Green  et  al.,  24  Ark., 
210),  we  are  left  to  conjecture  what  kind  of  coin  the  appellant 
was  charged  with  stealing.  It  is  a  loose  attempt  at  a  code 
indictment. 

The  code  provides  that  "  The  only  ground  upon  which  a  judg- 
nient  shall  be  arrested  is,  that  the  facts  stated  in  the  indictment 
do  not  constitute  a  public  offense  within  the  jurisdiction  of  the 
court;  and  the  court  may  arrest  the  judgment  without  motion, 
on  observing  such  defect :  "     Gantfs  Dig.,  sec.  1975. 

Wliat  is  the  meaning  of  this  section  of  the  code?  To  charge 
a  man  with  shooting  at  the  moon  would  not  be  charging  him 
with  a  public  offense.  To  charge  him  with  stealing  in  Texas 
would  not  be  charging  an  offense  within  the  jurisdiction  of  an 
Arkansas  court.  To  charge  a  man  with  larceny  merely,  would 
be  charging  him  with  a  public  offense  by  a  technical  name  only. 
Is  it  ill  such  instances,  or  similar  instances  only,  that  the  judg- 
ment may  be  arrested  ?  We  think  not.  Such  could  not  have 
been  the  intention  of  the  framers  of  the  code.  It  requires  cer- 
tain material  facts  to  make  any  public  offense  of  whatever  name, 
and  these  facts,  Avell  ascertained  in  law,  and  easily  apprehended 
by  ordinary  intelligence,  should  be  alleged  in  the  indictment, 
whether  framed  under  the  code  or  under  the  common  law. 

Our  cotle  provisions  in  relation  to  indictments,  arrest  of  judg- 
ment, etc.,  were  taken  from  the  Kentucky  code.  lihoons  et  al. 
V.  CominomncaUh,  2  Duvall  (Ky.),  159,  was  an  indictment  for 
the  larceny  of  treasury  notes,  etc.,  and  there  was,  as  in  this  case, 
a  motion  in  arrest  of  judgment  on  a  verdict  of  guilty. 

Tlie  court  said:  "On  the  subject  of  indictments,  our  criminal 
code  recogJiized  and  established  the  modern  comnum  law,  rightly 
nmlerstodd  and  rationally  applied.  It  dispenses  with  form,  and 
re'juires  substance  only.     And  what  is  now  substance  at  common 


111: 


342 


AMERICAN  CRIMINAL  REPORTS. 


s;t 


1  ■■ 


law  is  substance  under  tlie  code — and  that  i^  every  fact  Tiecessary 
to  constitute  the  specific  crime  charged — alleged  with  oidy  such 
precision  as :  Ist.  To  enable  the  court  to  see  that,  adniittinj^ 
the  fact,  it  has  jurisdiction,  and  that  the  imputed  crime  has  been 
committed  by  the  accused.  2d.  To  enable  the  accused  to  under- 
stand the  precise  charge,  and,  without  surprise,  to  prepare  for 
defense  against  the  proof  which  may  be  admissible  to  sustain 
that  specific  charge;  and,  3d.  To  make  the  verdict  and  judg- 
ment certainly  available  as  a  bar  to  any  subsequent  prosecution 
for  the  same  criminal  act." 

In  the  case  quoted  from  the  appellants  were  charged  with 
stealing  "  one  lot  of  treasury  notes,  called  greenbacks,  the  issue 
of  the  treasury  of  the  United  States  of  America,  and  one  lot  of 
Kentucky  bank-notes,  and  fifteen  dolhirs  in  gold  coin."  This 
charge  was  more  specific  than  the  charge  in  the  indictment  now 
before  us. 

The  court,  after  making  the  general  remarks  on  the  subject  of 
indictments  above  quoted,  said:  "According  to  this  test,  the 
indictment  in  this  case  seems  to  us  insufficient  to  authorize 
conviction. 

"One  lot  of  treasury  notes,  without  any  specification  of 
denomination,  number  or  value,  is  too  indefinite  for  the  iden- 
tification of  the  thing  taken,  or  of  any  part  of  it ;  and  one  lot  of 
Kentucky  bank-notes,  without  even  a  specification  of  the  bank, 
is  still  more  indefinite. 

"  Neither  of  these  charges  sufficiently  notified  the  accused  of 
the  facts  to  be  proved  ;  and  a  conviction  on  either  of  tliem  might 
not  be  availably  pleaded  in  bar  of  another  indictment  for  the 
same  ofl!ense.  A  minute  description  of  all  the  treasury  and  bank- 
notes might  be  impossible,  and,  therefore,  is  not  recpiired.  i>ut 
a  nearer  ai)|)roach  to  it  than  this  indictment  makes  may  be  pre- 
sumed to  have  been  easy,  and  onght  to  be  rc(|uirt'd.  A  specifica- 
tion of  even  one  of  the  notes  in  ea(^h  lot,  so  as  to  identify  it, 
might  be  sufiicient  to  answer  the  ends  of  the  test  just  defined. 

"Nor  can  fifteen  dollars  in  gold  coin,  without  any  specifica- 
tion of  the  number  of  pieces,  or  of  the  charactiM'  or  identity  of 
the  coin,  or  of  any  portion  of  it,  be  deemed  sufficient  for  all  the 
purposes  of  the  law." 

In  The  State  v.  Longbottom,  11  Humph.,  39,  the  accused  was 
charged  with  stealing  "ten  dollars  good  and  lawful  money  of 


BAKTON  V.  STATE. 


343 


the  state  of  Tennessee,"  and,  on  conviction,  the  judgment  was 
ai'rested  and  tlie  state  appealed. 

The  Supreme  Court,  of  Teimessee,  said:  "Where  personal 
chattels  are  the  subject  of  an  oflense,  as  in  larceny,  tliey  must  be 
described  specifically  by  the  names  usually  appropriated  to  them, 
and  the  number  and  value  of  each  species  or  particular  kind  of 
goods  stated :  2  Hale,  182-3 ;  Arch.  Cr.  PI.,  49.  Money  should 
be  specified  as  so  many  pieces  of  the  current  gold  or  silver  coin 
of  the  realm.  And  the  species  of  coin  must  be  stated  by  its 
appropriate  name :  Arch.,  50."  The  court  held  that  the  sub- 
ject of  the  larceny  was  insuflaciently  described,  and  that  the  judg- 
ment was  proi;)erly  arrested. 

In  The  People  v.  Ball,  14  Cal.,  101,  the  subject  of  the  lar- 
ceny was  described  as  "  three  thousand  dollars  lawful  money  of 
the  United  States."  The  court  said :  "  This  description  is  not 
eutficient.  In  an  indictment  for  larceny,  money  shoiild  be 
described  as  so  many  jiieees  of  the  current  gold  or  silver  coin  of 
the  country,  of  a  particular  denomination,  according  to  the  facts. 
The  species  of  coin  must  be  specified :  Arch.  Cr.  PI.,  61  ;  Whart. 
Cr.  Law,  132." 

In  The  State  v.  Mvrphy,  fi  Ala.,  846,  the  subject  of  the  lar- 
ceny was  thus  described :  "  Sundry  pieces  of  silver  coin,  made 
current  by  law,  usage  and  custom  within  the  state  of  Alabama, 
amounting  together  to  the  sum  of  five  hundred  and  thirty  dol- 
lars and  fifteen  cents,  of  the  value,"  etc.,  and  this  was  held  to  be 
insiifiii'iont. 

In  McKnne  v.  The  State,  11  Ind.,  195,  the  accused  was 
charged  with  stealing  "sixty  dollars  of  the  current  gold  coin  of 
the  United  States,"  etc. 

The  court  recognized  the  general  rule,  as  to  the  description  of 
coin,  when  the  subject  of  larceny,  but  said  :  "  We  have  a  piece 
of  money  of  the  gold  coin  called  a  dollar ;  and  is  it  not  just  as 
intelligible  to  say  'sixty  dollars  of  the  gold  coin,'  as  to  say 
'sixty  pieces  of  gold  coin  called  sixty  dollars?'  In  our  opinion 
the  indictment  is  unobjectionable," 

Mr.  P>isliop,  commenting  on  this  case,  says :  "  If  the  expres- 
sion, 'sixty  dollars  of  the  current  gold  coin  of  the  United  States' 
really  meant,  as  the  court  seems  to  have  understood  it  to  mean, 
that  the  theft  was  of  sixty  distinct  pieces  of  gold  goin,  each  piece 
being  of  the  value  of  a  dollar,  then  the  indictment  was  good 
according  to  the  general  doctrine." 


1-^ 


i 


•a 


:'t 


344 


AMERICAN  CRIMINAL  REPORTS. 


But  this  Indiana  indictment,  it  may  be  observed,  is  more  sjie- 
ciiic  in  the  description  of  the  subject  of  the  hirceny  than  the  one 
before  us.  "  Sixty  dollars  of  the  current  gold  coin  of  the  United 
States,  of  the  value  of  sixty  dollars,"  is  a  much  more  deiinite 
description  of  money  than  "  one  hundred  and  thirty  dollars,  of 
the  value  of  one  hundred  and  thirty  dollars." 

We  can  find  in  no  text-book  of  precedents  for  indictments  as 
loose  and  vague  a  description  of  money,  when  the  subject  of  lar- 
ceny, as  the  indictment  before  us. 

The  judgment  must  be  reversed,  and  the  cause  remanded  to 
the  Pulaski  circuit  court  (to  which  the  jurisdiction  of  the  Pul- 
aski criminal  court  is  transferred  by  the  new  constitution),  with 
instructions  to  the  court  to  arrest  the  judgment,  and  hold  the 
appellant  subject  to  a  new  indictment. 


i 


mm 


lit 

-i 
■•'-i  • 

'i^  '!■ 

■  i^ 

■1^ 

■'■J 

:.,:^ 

Lowe  v.  State. 

(57  Geo.,  171.) 

Larceny:    Duplicity— Suffickrusy  of  proof. 

An  indictment  for  simple  larceny  in  stealing  two  hogs  at  the  same  time  and 
place,  though  alleging  that  one  is  the  property  of  one  person,  and  the 
other  of  another,  covers  but  one  transaction  and  charges  but  one  offense, 
and  jadirnient  tiicreou  will  not  be  arrested. 

Proof  that  defendant  stole  one  of  the  hogs  is  sufScient  to  convict  under  such 
an  indictment. 

Jackson,  J.  The  indictment  alleged  that  the  defendant  stole 
two  hogs  belonging  to  different  owners,  on  the  same  day,  and  in 
the  same  county.  He  waa  found  guilty,  and  moved  to  arrest  the 
judgment  on  the  ground  that  two  oifenses  were  charged. 

1.  We  think  the  indictment  covers  one  transaction  and  charges 
but  one  offense,  and  is  good — certainly  good  as  against  a  motion 
to  arrest  the  judgment  after  verdict. 

2.  The  proof  only  justified  the  conviction  for  stealing  one  of 
the  hogs.  The  penalty  or  punishment  prescribed  by  the  law, 
and  inflicted  by  the  judge,  being  the  same  whether  one  or  both 
were  stolen,  the  verdict  is  sustained  by  the  evidence,  and  the 
motion  for  a  new  trial  on  this  ground  was  properly  overruled. 

Judgment  atfirmed. 


!  I  ■ ! 


LOO.MIS  V.  PEOPLE. 


84$ 


LOOMIS  V.   Peoi'le. 

(67  N.  Y..  323.) 

Lkuckhy:  By  n  (rick. 

Where  two  conspire  together  to  fraudulently  obtain  the  money  of  the  prose- 
cutor, and,  in  pursuance  of  the  conspiracy,  make  believe  to  throw  dice 
witli  one  another  for  money,  and  one  of  them,  apjiiirently  losing,  jier- 
suades  the  prosecutor  to  let  him  have  liis  money  to  bet  on  tiic  game,  on 
the  false  assurance  that  he  is  sure  to  win  and  will  give  it  back  imniedi-' 
ately,  and  if  he  loses  he  has  a  check  for  1500  in  his  pocket  which  he  will 
get  cashed  and  repay  the  money,  and  the  money  is  apparently  lost,  soon 
after  which  the  confederates  disappear,  the  two  thus  conspiring  are  guilty 
of  larceny. 

Miller,  J.  The  prosecutor  was  induced  to  place  his  money 
upon  a  game  of  hazard  upon  tlie  assurance  of  Lewis,  one  of  the 
prisoners,  that  lie  was  to  win,  and  he  would  have  his  money  back, 
or  that,  in  case  of  loss,  other  money  would  be  procured  upon  a 
check  which  Lewis  claimed  to  have  in  his  possession,  and  paid  in 
phice  of  that  lost. 

It  is  evident  that  the  prisoner  Lewis  and  his  confederate  Loomis 
conspired  fraudulently  and  feloniously  to  prucure  the  money  of  the 
prosecutor,  and  by  means  of  a  trick  and  device  succeeded  in  con- 
verting it  to  their  own  use.  Upon  the  facts  proven  the  question 
to  be  determined  is,  whether  a  case  of  larceny  is  established. 
The  jury  have  found  that  it  was  the  intention  of  the  prisoners  to 
convert  the  money  without  the  consent  and  against  the  will  of 
the  prosecutor,  and  that  he  did  not  intend  to  i)art  with  his  prop- 
erty. I  think  that  the  conclusion  at  which  they  arrived  was 
alnuulantly  warranted  by  the  evidence,  and  the  conviction  of  the 
prisoners  can  be  upheld  upon  well-established  legal  grounds.  It 
is  contended  that  the  conviction  was  erroneous,  because  the  prose- 
cutor voluntarily  parted  with  his  money,  not  expecting  to  receive 
back  the  same  bills,  but  otiiers  in  their  place,  and  hence  the 
crime  was  not  made  out.  It  must  be  conceded  that,  in  order  to 
eetablish  the  offense  of  larceny,  there  must  be  a  trespass,  and 
witliout  this  element  the  otfense  is  not  complete  :  1  Hawk.  PI. 
Ci'.,  section  1,  p.  108  ;  2  Russ.  on  Crimes  (5th  Am.  ed.),  {»."> ; 
Ilr Donald  v.  The  People,  43  N.  Y.,  61 ;  Hlldehrand  v.  The 
People,  56  Id.,  394:.  Even  although  the  owner  is  induced  to 
part  with  his  property  by  fraudulent  means,  yet  if  he  actually 


^■^^ 


.3, 


w 


fUlv 


Ml.r 


3 


AMERICAN  CRIMINAL  REPORTS. 


intends  to  part  with  it,  and  delivers  up  possession  absolutely,  it 
is  not  larceny :     People  v.  Smith,  53  N.  Y.,  111. 

In  this  case,  considerinc^  the  circumstances,  it  cannot  be 
deemed,  we  tliink,  that  the  prosecutor  intended  to  part  with  the 
possession  or  the  ownership  of  the  money.  It  was  lianded  over 
for  a  particular  puri)ose,  with  no  intention  to  loan  it,  or  abso- 
lutely to  surrender  the  title,  and  it  was  only  in  case  of  its  loss 
that  other  money  was  to  be  procured  upon  the  check,  which  the 
prisoner  Lewis  claimed  to  have  in  his  possession.  The  prose- 
cutor then  had  })arted  with  no  absolute  right  to  the  same,  nor 
transferred  any  title  to  the  bills  before  the  contingency  of  tlie 
loss  occurred,  and  the  use  of  the  money  was  but  temporary,  and 
for  a  specified  object.  Certainly,  when  it  a]ipeared  that  no  lu>8 
had  ha])pened,  the  temporary  possession  was  at  an  end,  and  to  all 
intents  and  purposes  the  money  reverted  to  the  prosecutor.  The 
alleged  loss,  brought  about  by  the  criminal  and  fraudulent  con- 
duct of  the  prisoners,  could  not  change  the  ti  \\  or  in  any  way 
transfer  the  ownership  to  them.  They  did  not  thereby  aci^uire 
any  right,  and  it  cannot  seriously  be  questioned  that  at  this  tin.c. 
if  not  before,  the  prosecutor  would  have  been  justified  in  takinj,' 
the  money  forcibly,  or  could  have  maititained  an  action  for  the 
recovery  of  the  same  identical  bills.  It  was  his  money,  and  the 
conversion  of  it  by  the  prisoners,  before  it  was  won,  was  witliuut 
a  semlilance  of  lawful  authority,  and,  as  the  jury  had  found,  with 
a  felonious  intent. 

It  was  a  clear  case  of  larceny,  as  marked  and  significant  in  its 
general  features  its  if  the  pi-isoners  had  wrongfully  seized  and 
ai)j)ropriated  it  when  first  i)roduced.  The  form  of  throwing  tlic 
dice  was  only  a  cover,  a  device  and  contrivance  to  conceal  the 
origiiud  design,  and  so  long  as  there  was  no  consent  to  part  with 
the  moni^y,  does  not  change  the  real  character  of  the  crime. 
While  the  element  of  trespass  is  wanting  and  the  offenst;  is  not 
larceny,  where  consent  is  given,  and  the  owner  intended  to  part 
with  his  jjroncrty  absolutelv,  and  not  mcrelv  with  a  teniitorarv 
possession  of  tiie  same,  even  aUiiongh  sncth  consent  was  procuirod 
by  fraud,  and  the  person  olitaining  it  had  an  (ininius  faratuli, 
yet,  !is  is  well  said  by  a  writer  upon  criminal  law  : 

"It  is  dillennit  v;here,  with  the  aiilmns  furandi,  a  person 
obtains  consent  to  his  temporary  possession  of  property,  and  flcn 
coiii'i  rl.s  It  to  his  oivri  use.  The  act  goes  farther  than  the;  con- 
bent,  and  may  be  fairly  said  to  be  against  it.     Consent  to  deliver 


LOOMIS  V.  PEOPLE. 


347 


the  temporary  possession  is  not  consent  to  deliver  the  property 
in  a  thing,  and  if  a  person,  animus  furandi,  avail  himself  of  a 
temporary  possession  for  a  specific  purpose,  obtained  by  consent 
to  convert  tlie  property  in  the  thing  to  himself  and  defraud  the 
owner  thereof,  he  certainly  has  not  the  consent  of  the  owner. 
He  is,  therefore,  acting  against  the  will  of  the  owner,  and  is  a 
trespasser,  because  a  trespasser  upon  the  property  of  another  is 
only  doing  some  act  upon  that  property  against  the  will  of  the 
owner." 

In  the  case  at  bar  there  was  no  valid  agreement  to  part  w'ith 
the  money  absolutely,  and  no  consent  to  divest  the  owner  of  his 
title.    It  was  passed  over  for  a  mere  temporary  use  at  most,  and 
the  legal  title  remaining  in  the  owner,  the  conversion  of  it  by 
the  prisoners  within  the  rule  cited,  was  larcen}'.     The  reports  are 
full  of  familiar  illustrations  of  this  rule,  as  a  reference  to  some 
of  the  leading  cases  will  show.     In  IlilJelrand  v.  The  People, 
supra,  a  fifty-dollar  bill  delivered  to  the  prisoner  to  pay  ten 
cents  and  return  the  change,  w%i8  kept  by  him,  and  it  was  held 
to  be  larceny.     It  was  intended  that  after  taking  out  the  ten 
cents  other  money  should  be  exchanged,  and  to  this  extent  and 
for  this  purpose  the  prisoner  had  lawful  possession  of  the  money. 
In  that  ease,  as  here,  the  money  was  not  absolutely  parted  with, 
but  surrendered  for  a  Kpccitic  {)ui"])08e  and  the  custody  tempor- 
arily transferred.     It  is  true  that  in  the  case  last  citt'd,  the  dt-liv- 
ery  was  held  not  to  be  com]ilete  until  the  change  was  returned, 
but  that  does  not  alter  the  prin('i])le  when  there  was  but  a  tem- 
porary possession,  as  there   was  no  transfer  of  the  ownership. 
See,  mIso,  Me  Donald  i\  V'/ic  l\<>j>U\  Ni/j>r(C.      Nor  docs  it  change 
the  ;is|)ect   of  the  case  when,  by  triek  or  device,  the  owner  is 
iiuhiccd  to  piirt  with  tlio  custody  or  naked  possession  of  property 
for  a  special  |tin']>ii-e  to  one  who  receives  it  a/ihni/s  fiwrnidi.  and 
btill  mean.-  lo  retain  a  right  of  pru|ierty  :     Sinitk  o.  T he  People, 
6!5  N.  v.,   ill.     In   Ji'ex,  v.  J  Joiner  (1   Leach,   305),  where  the 
prosecutor  was  decoyed  into  a  public  house  and  money  obtained 
from  him  for  the  purpose  of  playing  at  cards,  and  appropriated 
by  tiie  prisoner,  it  was  held  that  if  there  was  a  preconcerted  jilan 
to  obtain  the  money,  and  an  animus  fuiuindi,  \t  was  felonious. 
This  case  is  analogous  and  directly  in  point,  and  it  is  dillicult  to 
draw  any  distinction  between  the  case  cited  and  the  ease  at  the 
bar,  as  there  was  (piite  as  strong  ground  for  finding  the  felonious 
intent  in  the  latter  case  as  in  that  cited. 


iii 
•  '1 


_.    k 


848 


AMERICAN  CRIMINAL  REPORTS. 


m 

\i:  '.■■.■ 

ml 


In  Hex  V.  Rohson,  E.  &  R.  C.  C,  413,  wlierc  there  was  a  plan 
to  cheat  the  jirosecutor  out  of  his  property  under  cohjr  of  a  l)et. 
and  lie  parted  with  the  possession  only  to  deposit  it  as  a  stake 
with  one  of  the  confederates,  the  taking  was  held  to  Ix;  felonious. 
This  case  is  directly  in  point,  and  as  a  docihii.'  ,  the  twelve 
judi^es  is  entitled  to  great  weight.  The  c•a^  ri erred  to,  Avitliout 
citing  others  which  bear  in  the  same  direction,  are  sntiicieiit  to 
sustain  the  conviction,  and  the  cases  which  have  been  i-iti  I  as 
upholding  the  principle  that  there  was  no  such  parting  wiili  the 
property  as  to  constitute  larceny,  do  not,  I  think,  go  to  the  extent 
which  is  claimed.  After  a  careful  examination,  without  ('(m-id- 
ering  them  in  detail,  sufHce  it  to  say,  that  perhaps  a  single  excep- 
tion {Reg.  V.  T/ioman,  \)  C.  A:  P.,  741),  which  was  a  /^.il  pr/n.^ 
decision,  and  is  criticised  in  the  opinion  in  JlUiit'if  ■>,,'/  r.  Thr 
People,  they  are  all  clearly  distijiguisliable  from  the  ease;  \u\w 
considered,  and  the  weight  of  authority  is  decidedly  in  an  oppo- 
site  direction. 

There  is,  to  be  sure,  a  narrow  margin  between  a  case  of  larceny 
and  one  where  the  jiroperty  has  been  obtained  by  false  pretenses. 
The  distinction  is  a  very  nice  one,  but  still  very  im])()rtant.  The 
character  of  the  crime  depends  uj)on  the  intention  of  the  parties, 
and  that  intention  determines  the  nature  of  the  oilVnse.  In  tlie 
former  case,  where,  by  fraud,  conspiracy,  or  artifice,  the  posses- 
sion is  obtained  with  a  felonious  design,  and  the  title  still  remains 
in  the  owner,  larceny  is  established.  AVhile  in  the  latter,  wheiv 
title,  as  well  as  possession,  is  absolutely  parted  with,  the  crime  is 
false  ])retenses.  It  will  be  observed  that  the  Intrjitlnn  ot  the 
owner  to  part  with  his  property  is  the  gist  and  essence  of  the 
oltense  of  larceny,  and  the  vital  point  upon  which  the  crime 
hinges  and  is  to  be  determined.  Although  the  ])resent  case  is  on 
the  border  line,  yet  it  is  (juite  clear  that  it  was,  as  tin,'  evidence 
stood,  a  fair  (jnestion  for  the  jury  to  decide  as  to  the  intent  ol 
the  prisoners  feloniously  to  take  the  money,  ami  as  to  the  inten 
tion  of  the  prosecutor  to  i)art  with  the  ownership  of  the  same. 

These  (questions  wore  fairly  submitted  by  the  judge  to  theii' 
coiisidci'ation,  and  as  there  was  no  error  in  the  charge,  or  i';  any 
otiier  re.-pect  on  the  trial,  the  conviction  must  be  atlirmed. 

All  (!jncur ;  11ai'alia»,  J.,  absent. 

dudyiiien t  ajjlnn ed. 


"f 


STANLEY  V.    STATE. 


349 


»8  a  plan 
of  a  bet, 

a  stake 

'onions. 

13  twelve 

^^'ithout 

I'-iV'iit  to 

it'  I  as 
II  the 


i'H 


Stanley  v.  State.' 

(24  Ohio  St.,  166.) 

Laiiceny:    Bringing  into  the  state  property  stolen  in  a  foreign  country. 

In  the  iibsence  of  a  statute,  the  thief  cannot  be  convicted  of  larceny  in  Ohio, 
for  bringing  into  Ohio  property  stolen  by  him  in  Canada. 

MoIlvainb,  J.  At  the  November  term,  1873,  of  the  court  of 
common  pleas  of  Cuyahoga  county,  the  plaintiff  in  error,  "William 
btaiilcy,  was  convicted  of  the  crime  of  grand  larceny,  and  sen- 
tenced for  a  term  of  years  to  the  penitentiary. 

Tlio  indictment  upon  which  he  was  convicted  charged  "  that 
William  Stanley,  late  of  tlie  county  aforesaid,  on  the  twentieth 
(Jay  of  June,  in  the  year  one  thousand  eight  hunch'ed  and  sev- 
eiity-tliree,  at  the  county  aforesaid,  with  force  and  arms,"  certain 
silverware,  "  of  the  goods  and  chattels  and  property  of  George 
P.  Harris,  then  and  there  being,  then  and  there  unlawfully  and 
feloniously  did  steal,  take  and  carr}'  away,"  etc. 

The  following  facts  were  proven  at  the  trial : 

1.  That  the  goods  descril)ed  in  the  indictment  belonged  to 
Plarris,  and  were  of  the  value  of  one  Imndred  and  sixty-live 
dollars. 

2.  That  they  were  stolen  from  Harris  on  the  20th  of  June, 
1873,  at  the  city  of  London,  in  the  J)(»minion  of  Caiuula. 

3.  That  they  were  afterwards,  on  tlie  2()th  day  of  same  month, 
Iniiiid  in  the  possession  of  the  defendant,  in  said  county  of  Cuya- 
lioga.  It  is  also  conceded  that,  in  order  to  convict,  the  jury  must 
jiave  found  that  the  goods  were  stolen  l)y  the  deriMidant  in  the 
nonunion  of  Canada,  and  carried  thenco  by  him  to  the  state  of 
Ohio. 

Upon  this  state  of  facts,  was  the  ])risoner  lawfully  convicted? 
In  other  words,  if  property  be  stolen  at  a  place  boytiiul  the  jnris- 
(lictidii  of  this  state,  and  of  the  United  States,  and  afterward 
Iii'onght  into  this  state  by  the  thief,  can  he  be  lawfully  convicted 
of  larceny  in  this  state? 

In  vi(!W  oi'  the  free  intercourse  between  foreign  countries  and 
this  state,  and  the  immense  immigration  and  importation  of  prop- 
orty  from  abroad,  this  question  is  one  of  very  great  importance; 
aiwl,  I  may  add,  tliat  its  determination  is  unaided  by  legislation 


il 


350 


AMERICAN  CUIMINAI.  HEl'OliTS. 


r 


in  this  state.  In  resolving  this  question,  we  have  hocn  iimoh 
embarrassed  by  a  former  decision  of  this  court,  in  Haiti  ilton  y. 
Tlie  State.,  11  Ohio,  -135.  In  that  case  it  was  lield  by  a  iii;i joiity 
of  the  judgeF,  tliat  a  person  liaving  in  his  possession,  in  this  state, 
property  whicli  liad  been  stolen  by  him  in  another  state  of  the 
Union,  might  be  convicted  here  of  larceny. 

The  decision  appears  to  have  been  placed  upon  the  ground, 
"that  a  long-sustained  practice,  in  the  criminal  courts  of  this 
state,  had  settled  the  construction  of  the  jioint,  and  estaljlisliod 
the  right  to  convict  in  such  cases." 

Whether  that  decision  Ciin  bo  sustained  upon  the  principles  df 
the  common  law  or  not,  it  must  be  conceded  tliat  for  more  than 
thirty  years  it  has  stood,  unchallenged  and  unquestioncHl,  as  an 
authoritative  exposition  of  the  law  of  this  state.  And  altliough 
it  has  received  no  express  legislative  recognition,  it  has  been  so 
long  followed  in  our  criminal  courts,  and  acquiesced  in  by  otlier 
departments  of  the  government,  that  we  are  inc!ine<l  to  tho 
opinion  that  it  ought  not  now  to  be  overruled ;  but,  on  the  other 
hand,  its  rule  should  be  applied  and  sustained,  in  like  cases,  upon 
the  principle  of  stare  decisis. 

Before  jjassing  from  Hamilton  v.  Tlie  State.,  it  should  he 
added  that  the  same  question  has  been  decided  in  the  same  way 
by  the  courts  of  several  of  our  sister  states. 

"  The  State  v.  Ellis,  3  Conn.,  1  sr) ;  The  State  v.  Barth'tt,  1 1 
Vt.,  (550;  The  State  v.  finder loood,  41)  Me.,  181;  ]Vaf.s,)/i  i\ 
The  State,  30  Miss.,  593  ;  The  State  v.  Johnson,  2  Ori'gon,  \\:,\ 
The  State  V.  Bennett,  14  Iowa,  47!);  Frrrel  v.  Common lovaltli, 
1  Duvall,  153;  Cinnmonvjealth  v.  Collins,!  Mass.,  IKI.  The 
same  point  has  been  decided  the  same  way  in  several  subsecpuiit 
cases  in  Massachusetts.  The  exact  question,  however,  n<»\v 
befof'e  U8  has  not  been  decided  by  this  court ;  and  we  are  unaiii- 
mously  of  opinion  that  the  rule  laid  down  in  Ilamiltini  v.  Thir 
State  should  not  be  extended  to  cases  where  tho  property  was 
stolen  in  a  foreign  and  independent  sovereignty. 

We  are  unwilling  to  sanction  tlio  doctrine  or  to  adopt  tlio 
practice,  whereby  a  crime  conimitti'(l  in  a  foreign  country,  and 
in  vioh\tion  of  the  laws  of  that  country  only,  may,  by  construc- 
tion and  a  mere  fiction,  be  treatcfd  as  an  olTense  committed  within 
this  state,  and  in  viohition  of  the  laws  thereof.     In  this  casi;  tin' 

g Is  were  stolen  in  Canada.     They  were  there  taken  from  the 

custody  of  the  owner  into  the  custody  of  the  thief.     The  (diangc 


STANLEY  V.  STATE. 


361 


'lUK'h 

IS  state, 
of  the 

n'oinid, 
>f  tliis 
)li.slic(i 


upon 


of  possc'ssluii  was  cuniplete.  The  goods  were  afterward  carried 
bv  tlie  thief  from  the  Dominion  of  Canada  to  the  state  of  Ohio. 
During  the  tratisit  his  possession  wa«  continuous  and  uiiinter- 
riiptod.  Xow,  tlie  theory  upon  whicli  tliis  conviction  is  sought 
to  bo  sustained  is,  that  the  legal  possession  of  the  goods  remained 
all  the  while  in  the  owner.  If  this  theory  be  true,  it  is  true  as  a 
iiction  of  the  law  only.  The  fact  was  otherwise.  A  further 
theory  in  support  of  the  con  v^iction  is,  that  as  soon  as  the  goods 
arrived  within  the  state  of  Ohio,  the  thief  again  took  them  from 
the  possession  of  the  owner  into  his  own  possession.  This  theory 
is  not  supported  by  the  facts,  nor  is  there  any  presumption  of 
law  to  sustain  it. 

That  the  right  of  possession,  as  well  as  the  right  of  property, 
remained  all  the  time  in  the  owner  is  true,  as  matter  of  law. 
And  it  is  also  true,  as  a  matter  of  fiction,  that  the  possession  of 
the  thief,  although  exclusive  as  it  must  have  been  in  order  to 
make  him  a  thief,  is  regarded  as  the  possession  of  the  owner,  for 
some  jjurpohcs.  Thus,  stolen  goods,  wliile  in  the  possession  of 
the  thief,  nuiy  be  again  stolen  by  another  thief;  and  the  latter 
may  be  ch-.ged  with  taking  and  carrying  away  the  goods  of  the 
owner.  >iut!  for  the  purpose  of  sustaining  such  charge,  the  pos- 
session of  the  first  thief  will  be  regarded  as  the  possession  of  the 
true  owner.  This  iiction,  however,  in  no  way  changes  the  nature 
of  the  facts  which  constitute  the  crime  of  larceny. 

Wiiat  we  deny  is,  that  a  mere  change  of  place  by  the  thief, 
while  he  continues  in  the  uninterrupted  and  exclusive  possession 
of  the  stolen  property,  constitutes  a  new  "taking"  of  the  prop- 
erty, either  as  matter  of  fact  or  of  law. 

Larceny,  under  the  statute  of  this  state,  is  the  same  as  at  com- 
mon law,  and  may  be  detined  to  be  the  felonious  taking  and  car- 
rviiig  away  of  the  personal  proi)erty  of  another.  But  no  offense 
a<!;uiii8t  this  statute  is  complete  until  every  act  which  constitutes 
an  essential  element  in  the  crime  has  been  committed  within  the 
limits  of  tliis  state.  The  act  of  "  taking"  is  an  essential  element 
in  the  crime,  and  defines  the  act  by  wliich  the  possession  of  the 
property  is  changed  from  the  owner  to  the  thief.  But  the  act  of 
"taking"  is  not  repeated,  after  the  change  of  possession  is  once 
coiupkite,  and  while  the  possession  of  the  thief  continues  to  be 
exchisive  and  uninterrupted.  JlencA',  a  bailee  or  finder  of  goods, 
who  obtains  complete  possossiou  without  any  fraudulent  intent, 


> ' 


.'If 
i 

:    ! 


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SW-." -'ilEaiMES 


[at    ' 


352 


AMERICAN  CRIMINAL  REPORTS. 


^ 


can  not  be  convicted  of  larceny  by  ruatsuu  of  any  subsequent 
upjiropriatiou  of  them. 

We  fully  recognize  the  common  law  practice,  that  when  prop- 
erty is  stolen  in  one  county,  and  the  thief  is  afterward  found  in 
another  county  with  the  stolen  property  in   his  possesyiuu,  he 
may  be  indicted  and  convicted  in  either  county,  but  not  in  both. 
This  practice  obtained,  notwithstanding  the  general  rule  tliat 
every  prosecution  for  a  criminal  cause  must  be  in  the  county 
where  the  crime  was  committed.     The  reason  for  the  ahove 
exception  to  the  general  rule  is  not  certainly  known,  nor  is  it 
important  in  this  case  that  it  should  be  known,  as  it  relates  to 
the  matter  of  venue  only,  and  does  not  affect  the  substance  of 
the  offense.     We  are  entirely  satisfied,  however,  that  the  riglit 
to  prosecute  the  thief  in  any  county  wherein  he  was  found  in 
possession  of  the  st  jlen  property,  was  not  asserted  by  the  crown, 
because  of  the  fact  that  a  new  and  distinct  larceny  of  the  goods 
was  committed   whenever  and  wherever  the   thief  might  jniss 
from  one  county  into  another.     His  exemption  from  more  tliau 
one   conviction    and    punishment   makes  this    proposition  clour 
enough.     The  common  law  provided  tliat  no  person  sliould  be 
twice  vexed  for  the  same  cause.     It  was  tlirough  the  oj)eration 
of  this  principle  that  the  thief,  who  stole  pmperty  in  one  county 
and  was  afterward  found  with  the  fruits  of  his  crime  in  another, 
could  not  1)0  tried  and  convicted  in  each  county.     He  was  guilty 
of  one  olfense  only,  and  that  offense  was  com|)l(!tc  in  the  comity 
where  the  proi)erty  was  tirst  "taken"  by  the  thief,  and  removed 
from  the  j)lace  in  which  the  owner  had  it  in  possession. 

When  goods  piratically  seized  upon  the  high  seas  were  after- 
wards carried  by  the  thief  into  a  county  of  I'liglaml,  the  coiii- 
mon  law  judges  refused  to  take  cognizance  of  the  larceny, 
"because  the  original  iwt,  namely,  the  tiikiiig  of  them,  was  not 
any  offense  whereof  the  common  law  taketh  kiiowledgit,  and  l»y 
consequence,  the  bringing  them  into  a  county,  could  tiot  m;ike 
the  same  a  felony  punishable  by  our  law  :  "  l.*>  Coke,  5',i ;  3  In>t., 
113;  1  Hawk.,  c.  l'.>,  sec  .'.2. 

The  prisoner  was  charged  with  larceny  at  Dorsetshire,  where 
he  had  possession  of  the  stolen  goods.  The  go«Mln  had  bien 
stolen  by  him  in  the  island  of  Jersey,  and  afterward  he  brought 
them  to  Dorsetshire.  The  prisoner  was  convicted.  All  the 
judges  (except  Raymond,  (!.  li.,  and  Taunton,  .1.,  who  did  not 
sit)  agreed  that  the  conviction  was  wrong:     /i,.r  v.  /*rinr,s,  1 


STANLEY  V.  STATE. 


353 


Moody  C.  C,  349.  Property  was  stolen  by  the  prisoner  in  France, 
and  was  transported  to  London,  where  it  was  found  in  his  posses- 
sion. Parke,  P.,  directed  the  jury  to  acquit  the  prisoner  on  the 
ground  of  the  want  of  jurisdiction,  wliicli  was  done :  liegina, 
V.  Madye,  9  Cow.  and  P.,  29. 

A  similar  decision  was  made  in  a  case  where  the  property  was 
stolen  in  Scotland,  and  afterward  carried  by  the  thief  into  Eng- 
land :    2  East  P.  C,  772,  c.  10,  sec.  156. 

This  rule  of  the  common  law  was  afterward  superseded,  in 
respect  to  the  United  Kinodom,  by  the  statutes  of  13  Geo.  III., 
c.  31,  sec.  4,  and  7  and  8  Geo.  IV.,  c.  29,  sec.  76,  whereby  prose- 
cutions were  authorized  in  any  county  in  which  the  thief  was 
fttuud,  in  possession  of  property  stolen  by  him  in  any  part  of  the 
I'liitcd  Kinifdom.  In  Co/nmo/noe/ilfh  v.  Ujn'ichard^  3  Gray, 
434,  tlie  pro])erty  had  been  stolen  in  the  province  of  Nova  Scotia, 
and  thence  carried  by  the  thief  into  Massachusetts.  The  defend- 
ant was  convicted  of  larceny,  charged  to  have  been  committed 
in  the  latter  state.  This  conviction  was  set  aside  by  a  unanimous 
court,  although  two  decisions  had  been  nuule  by  the  same  court 
uffirniing  convictions,  where  the  property  had  been  stolen  in  a 
sist'M"  state,  and  afterward  brought  by  the  thief  into  that  com- 
monwealth. Without  overruling  the  older  cases,  Chief  Justice 
Shaw,  in  delivering  the  opinion  of  the  court,  distinguished 
between  the  two  chisses  of  cases.  The  following  cases  are  in 
point,  that  a  state,  into  which  stolen  goods  are  carried  by  a  thief 
from  a  sister  state,  has  no  jurisdiction  to  convict  for  the  larceny 
of  the  goods,  and  a  fortiori  when  the  goods  were  stolen  in  a 
foreign  country. 

In  New  Vork  :  Prnplc  v.  Gardner^  2  Johns.,  477;  People  v. 
Sc/icid;  2  .lolins.,  479.  Tliu  rule  was  afterward  changed  in  that 
Ptfltc  by  statute.  New  .Fersey :  7^ he  State  v.  Le  Blanch,  2 
Yrooiii,  S2.  PentiHvlvaiiia:  iSinwions  v.  Commonwealth,  5 
Biuit.,  617.  North  Carolina:  Thi  iitate  v.  Brown,  1  Hayw., 
l(Kt.  Tetjiussee :  S/'m/i.ton  v.  7*'"'  Stt{f<',  4  llumph.,  4^Ai, 
Iinliana:  /iid/l  v.  7' he  State,  15  hid.,  378.  Louisiana:  2' he 
Stiife  V.  Ji'oiiidi'Ki^  14  L.  xVnn.,  278. 

There  are  two  castas  su8taining  <v>nviction6  for  larceny  in  the 
ptatcs,  whtM'o  the  pn^juTty  had  been  stolen  in  the  Ibitish  prov- 
inces: I^he  State  r.  Rirtlett,  11  Vornnpnt.  650,  aiid  The  Stats 
V.  Undi  ru-'>od,  49  Maine,  181.  In  Hart Irti's  case,  the  principle 
is  doubted,  but  the  practice  adopted  in  cases  where  the  property 
Vol..  11- aa 


'  »i  > 


:|i: 


111 


354 


AMERICAN  CRIMINAL  REPORTS. 


iiC 


it) 


<f 


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44, 


was  stolen  in  a  sister  state  was  followed,  and  the  application  of 
the  principle  thereby  extended.  Underwood's  case  was  docidoj 
by  a  aiajority  of  the  judi^es.  After  reviewinjj;  the  cnscf;,  w,. 
think  the  weight  of  authority  is  against  the  convictidii  ;iiid 
judgment  below.  And  in  the  light  of  principle,  wo  have  no 
hesitancy  in  holding  that  the  court  below  had  no  jurisdiction 
over  the  offense  committed  by  the  prisoner.  The  judgment 
below  is  wrong,  unless  every  act  of  the  defendant,  whicli  wiis 
necessary  to  complete  the  offense,  was  connnitted  within  the 
state  of  Ohio,  and  in  violation  of  the  laws  thereof.  This  pro- 
position is  not  disputed.  It  is  conceded  by  the  prosecution  that 
tlie  taking,  jis  well  as  the  removal  of  the  goods  animo  fii randi, 
must  have  occurred  within  the  limits  of  Oliio.  It  is  also  (.'on- 
ceded  that  the  lirst  taking,  as  well  as  the  first  removal,  ot  the 
goods  alleged  in  this  case  to  liave  been  stolen,  was  at  a  phice 
beyond  the  limits  of  the  state,  and  within  the  jurisdiction  ot'  a 
foreign  and  inde])endent  sovereignty.  Now,  the  doctrine  of  all 
the  cases  is  that  the  original  *'  taking,"  and  the  original  transpdp- 
tation  of  the  goods  by  the  prisoner  must  have  been  under  such 
circumstances  as  constituted  a  larceny.  If  the  possession  of  the 
goods  by  the  defendant  before  they  were  bronght  into  this  state, 
uas  a  lawful  possession,  there  wo\dd  be  no  jwetense  that  the  con- 
viction was  proper.  The  same,  if  his  possession  was  nicivly 
tortious.  The  theory  of  the  law,  upt)n  which  the  propriety  of 
the  conviction  is  claimed,  is  based  on  the  assumption  that  the 
property  was  stolen  in  Canada  by  the  prisoner. 

]}y  what  rule  shall  it  bo  determined  whether  the  acts  of  the 
prisoner,  whereby  he  acquired  the  possession  of  the  goodt"  in 
Canada,  constituted  the  crime  of  larceny?  By  the  laws  of  this 
state?  Certainly  not.  The  criminal  laws  of  this  state  have  no 
extra-territorial  operation.  If  the  acts  of  the  ])risoner,  wherehy 
he  came  in  possession  of  the  property  descriijed  in  the  indict- 
ment, were  not  inliibited  by  the  laws  of  Canada,  it  is  perfectly 
clear  that  he  was  not  guilty  of  larceny  there.  It  matters  not 
that  they  were  such  as  would  have  constituted  larceny  if  the 
transaction  had  taken  ])la('e  in  this  state. 

Shall  the  question,  whether  or  not  the  "taking"  of  the  prop- 
erty by  tlie  ])risoner  was  a  crime  in  Cainida,  be  determined  by 
the  laws  of  that  country  ?  If  this  be  granted,  then  an  act,  whit  li 
was  an  essential  element  in  the  condtinalion  of  facts  of  which 
Stanley  was  found  guilty,  was  in  violation  of  the  laws  of  Canada, 


I   1 1,! 


I 


STANLEY  V.  STATE. 


355 


but  not  of  this  state,  urnl  it  was  because  the  laws  of  Canada  were 
violated  that  tlie  prisoner  was  convicted.  If  the  laws  of  that 
country  had  been  diiJerent,  though  the  conduct  of  the  prisoner 
had  been  the  same,  he  could  not  have  been  convicted.  I  cm  see 
no  way  to  escape  this  conclusion,  and  if  it  be  correct,  it  follows 
tliat  the  acts  of  the  prisoner  in  a  foreign  country,  as  well  as  his 
acts  in  this  state  were  essential  elements  in  his  offense ;  therefore, 
no  complete  offense  was  committed  in  this  state  against  the  laws 
thereof. 

I  have  no  doubt  the  legislature  might  make  it  a  crime  for  a 
thief  to  bring  into  this  state  propertj'  stolen  by  him  in  a  foreign 
country.  And  in  order  to  convict  of  such  crime,  it  would  be 
necessary  to  prove  the  existence  of  foreign  laws  against  larceny. 
The  existence  of  such  foreign  laws  would  be  an  ingredient  in 
tlie  statutory  offense.  But  that  offense  would  not  be  larceny  at 
common  law,  for  the  reason  that  larceny  at  common  law  contains 
no  such  element.  It  consists  in  taking  and  -iarrying  away  the  goods 
of  another  person  in  violation  of  the  rules  of  the  common  law, 
witliuut  reference  to  any  other  law,  or  the  laws  of  any  other 
country.  It  may  be  assumed  that  the  laws  of  meum  et  tuum 
prevail  in  every  country,  whether  civilized  or  savage.  But  this 
state  has  no  concern  in  them  further  than  to  discharge  such 
duties  as  are  imposed  u[)on  it  by  the  laws  of  nations,  or  through 
its  coiuiection  witli  the  general  government,  by  treaty  stipulations. 

Our  civil  courts  are  open  for  the  reclamation  of  property 
which  may  have  been  brought  within  our  jurisdiction,  in  viola- 
tion of  the  rights  of  the  owner ;  but  our  criminal  courts  have 
no  jurisdiction  over  offenses  committed  against  the  sovereignty 
of  foreign  and  independent  states. 

J^idgment  reversed,  €md  ca/me  remanded. 
Day,  C.  J.,  Welch,  Stone  and  White,  JJ.,  concurring. 


M 


NoTK, — In  Morr>i>m/p.  People,  11  Mich.,  327,  the  Supremo  Court  of  Miclii- 
pan  WHS  (ivcnly  diviilod  on  the  question,  whctlior  a  sfiitute  providinsr  for  tlio 
imnisliiiiciit,  in  Miclii.iran,  of  persons  wlio,  liiivinif  committed  ii  liircciiy  in  a 
foreiirn  ((nmtry,  hroufilit  tlioHtoieu  properly  into  tlio  state,  was  const iltitioniil. 
]iut  the  nmjorityof  the  court  concurred  in  reversin.u;  the  jmli^nnent  in  that 
Ciisc  (in  tiie  uronndtiiat  the  information  was  fatally  l)ad,  inasmuch  as  it  simply 
chaiijcd  a  larceny  in  Micliit^an  in  the  ordinary  form;  while  the  court  held  that 
fill  the  tads  necessary  tolirins  the  case  within  the  statute,  i.  e.,  (he  larceny  la 
C'aimila,  and  the  l)rint;ing  of  the  stoleu  property  into  the  state,  must  he  act  out 
in  the  information. 


m$ 


AMEltlCAN  CRIMINAL  UEP0RT3. 


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4 


Pff 


Wilson  v.  State. 

(45  Tex.,  77.) 

Labobnt:    Autrefois  amviet. 

Where  a  person^teals  articles  belonging  to  different  persons  at  the  same  time 
and  place,  so  that  the  whole  constitutes  but  one  transaction,  he  has  com- 
mitted but  one  larceny,  and,  after  trial  and  conviction  for  stealing  a  part  of 
the  property,  the  conviction  may  l)e  pleaded  in  bar  of  a  second  indict- 
ment, charging  the  lar(;eny  of  the  other  property  taken  at  the  same  time 
and  place. 

Reeves,  Associate  Justice.  In  this  case  there  was  no  appear- 
ance for  the  appelliint.  Tlie  case  was  submitted  for  the  state  on 
the  brief  of  the  assistant  attorney-general. 

There  were  two  indictments  pending  in  the  criminal  court  of 
Dallas  City,  against  the  appellant.  In  the  first  one,  numbered 
on  the  docket  of  the  criminal  court  2,398,  the  defendant  was 
charged  with  the  theft  of  a  gelding  belonging  to  Granville 
Criner,  charged  in  the  indictment  to  have  been  taken  from  the 
possession  of  D.  N.  Harden,  who,  as  averred,  was  holding  the 
animal  for  the  owner.  The  other  indictment,  numbered  on  the 
docket  2,.'{99,  and  found  at  the  same  ter»n  of  the  court,  charged 
the  tlofentlant  with  theft  of  a  saddle,  bridle  and  blanket,  one  pair 
of  saddlc-bai.s.  one  umbrella,  three  shirts,  one  pair  pants,  two 
pairs  of  drawers,  belonging  to  D.  N.  Harden,  and  taken  from  his 
possession  on  the  lOtli  day  of  July,  1874,  being  the  same  day  the 
gelding  was  stolen  from  iiim. 

It  appears  that  the  defendant  was  first  put  upon  his  trial  on 
indictment  nundier  2,399,  charging  him  with  stealing  the  saddle, 
bridle  and  blanket,  etc.,  on  which  charge  he  was  convicted  by  the 
jury,  and  his  punishment  assessed  at  a  fine  of  one  hundred  dol- 
lars and  one  year's  confinement  in  the  county  jail ;  and,  by  the 
judgment  of  the  court,  he  was  remanded  to  the  custody  of  the 
sheriff  until  the  fine  and  costs  were  paid,  and  for  the  further 
term  of  one  year,  according  to  the  verdict  of  the  jury. 

On  his  trial  for  stealing  the  gelding,  as  charged  in  indictment 
number  2,398,  the  defendant  pleaded  the  former  conviction  on 
the  indictment  number  2,399,  as  a  bar,  and  .asked  to  be  dischargod 
from  further  prosecution,  because  the  offense  for  which  he  had 
been  tried  and  convicted  was,  in  fact  and  in  law,  the  same  offense 


(; 


m    V'; 


1 


WILSON  II.  STATE. 


357 


of  which  he  then  stood  charged.  Upon  the  motion  of  the  dis- 
trict attorney  the  plea  was  stricken-out  by  tlie  court.  The  case 
hoing  submitted  to  a  jury,  a  verdict  was  returned  assessing  the 
punishment  at  fifteen  years'  confinement  in  the  penitentiary. 
TIu!  motion  for  a  new  trial  being  overruled,  the  defendant  has 
appealed.  The  court  did  not  err  in  refusing  to  give  the  special 
charges  asked  by  the  defendant,  being  one  of  the  grounds  of  the 
motion  for  a  new  trial. 

The  first  charge  asked  by  the  defendant  was  to  the  effect  that 
the  state  could  only  prove  that  Granville  Criner,  the  owner,  did 
not  give  his  consent  to  defendant  to  take  the  gelding,  by  Criner 
himself,  or  by  the  confession  of  the  defendant.  The  court 
instructed  the  jury  "  that  the  want  of  the  owner's  consent  could 
he  established  by  the  evidence  of  the  party  from  whom  the 
prDperty  was  taken,  or  the  party  who  was  the  owner,  or  it  may 
he  established  b}'  facts  and  circumstances,  provided  such  circum- 
gtances  so  proven  are  of  such  a  nature  as  to  exchide  absolutely 
tvcry  reasonable  presumption  that  the  owner  gave  his  consent  to 
the  taking." 

The  appellant  has  no  just  ground  to  complain  of  this  cliarge : 
Lawrence  v.  TJie  State,  4  Yerg.,  145 ;  Free  v.  The  State,  13 
Ind.,  324. 

The  second  cliarge  refused  was  given  substantially  in  the  gen- 
eral charge,  and  the  court  was  not  required  to  repeat  it. 

The  fourth  ground  of  the  motion  for  a  new  trial  presents  the 
material  question  in  the  case,  to  wit :  Because  the  court  erred 
in  striking  out  defendant's  plea  of  autrefois  convict. 

Wharton,  in  his  work  on  American  Criminal  Law  (vol.  1,  sec. 
670),  says:  "  Whenever  the  offenses  charged  in  the  two  indict- 
ments are  capable  of  being  legally  identified  as  the  same  offense 
by  averments,  it  is  a  question  of  fact  for  a  jury  to  determine 
whether  the  averments  be  supported  and  the  offenses  be  the 
sunie.  In  such  ciises  the  replication  ought  to  conclude  to  the 
ci.iuntry.  But  when  plea  of  autrefois  acquit  upon  its  face 
eliows  that  the  offenses  are  legally  distinct,  and  incapable  of 
identification  by  averments,  as  they  must  be  in  all  material 
points,  the  replication  of  nul  t'ui  record  may  conclude  with  a 
verification.  In  the  latter  case  the  court,  without  the  interven- 
tion of  a  jury,  may  decide  the  issue."  The  same  rules  apply  to 
(he  pica  of  anti'«ifois  convict. 

"  The  plea,"  says  Bishop,  "  must  set  out  the  record  of  the 


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AMERICAN  CRIMINAL  REPORTS. 


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former  conviction  or  acquittal,  including  the  caption  and  indict- 
ment, and  allege  that  the  two  ofi'enses  are  the  same,  and  that  the 
defendant  in  the  former  is  the  same  person  who  is  the  defendant 
in  the  latter :"     1  Bishop's  Cr.  Pro.,  sees.  814,  816. 

"  When  there  are  special  pleas  upon  which  the  jury  are  to 
find,  tliey  must  say  in  their  verdict  that  the  matters  alleged  iu 
such  pleas  are  either  true  or  untrue : "  Code  Cr.  Pro.,  art.  3091, 
Paschal's  Dig. 

In  the  case  of  Davis  v.  The  State,  42  Texas,  494,  the  court 
said  :  "  It  would  certainly  be  most  in  harmony  with  our  general 
practice  to  submit  botli  issues  (the  plea  of  not  guilty,  and  plea  of 
former  conviction)  to  the  jury,  with  directions  to  first  consider 
the  special  plea ;  and  if  they  found  that  to  be  true,  to  proceed  no 
further  than  to  return  their  verdict  upon  it.  The  rule  to  be 
deduced  from  the  axithorities  is,  that  where  the  offenses  cliargoil 
in  diiferent  indictments  are  so  diverse  as  not  to  admit  of  proof 
tliat  they  are  the  same,  tlie  court  may  decide  the  issue  without 
submitting  it  to  a  jury. 

In  the  case  of  Bo(j(jess  v.  The  State,  from  McLennan  county, 
decided  at  Austin  (43  Tex.,  347),  the  action  of  the  court  sustain- 
ing exceptions  to  the  plea  was  held  to  be  correct. 

In  the  case  at  bar  we  are  not  able  to  say  that  it  nrcessarily 
appears  by  the  record  thfit  the  uft'cnpos  are  incapable  of  identifi- 
cation. The  plea  alhjges  that  they  are  the  same,  and  tliat  tlie 
defendant  is  the  same  person  in  both  indictments.  The  theft,  Uf* 
alleged  in  both  indictments,  is  charged  to  have  been  coinniittcil 
on  the  same  (hvy,  and  from  the  same  person.  In  one  c.iso  he  wus 
the  owner  of  the  property,  iind  in  the  other  he  was  in  ]>oasos8i(>n, 
and  holding  tho  same  for  the  owner,  according  to  the  allegatidii.s 
of  the  indictment. 

If  wo  look  to  the  evidence,  on  tho  trial,  for  the  tlioft  of  the 
gelding,  as  may  be  done  in  coiiHidering  tin;  nii»tion  for  a  new 
trial,  it  will  l)o  seen  that  D.  N.  Il.irden,  from  whoso  possession 
the  property  was  taken,  testilied  that  a  new  saddle,  a  pair  of 
eaddle-bagrt  filled  with  clutiiiiig,  a  blanket,  and  an  nnibrolln. 
i-trapped  on  the  suddle,  were  (»n  the  horse  nt  tlie  time  he  was 
taken,  being  in  part  such  articles  as  iire  deseribiMl  in  the  indici- 
ineiit.  Till!  saddle-bugs  may  have  contained  tli(!  other  articles 
nieiitintu'd  in  the  indictnient.  Tlie  horse  and  tlu^  saddle  and 
Baddlc-bags  belonged  to  ( trail vi lie  Criner,  leaving  it  to  be  inferred 


mm 


iind  iiulict- 

lul  that  the 

tiefoudaut 

ury  are  to 

alleged  in 

,  art.  3091, 

,  tlie  court 
>ur  general 
ind  plea  of 
st  consider 
proceed  no 
rule  to  be 
08  charged 
it  of  proof 
le  without 

lan  conntv, 
irt  sustaiu- 

nrcessarilv 
of  identifi- 
d  that  the 
10  tiieft,  a,s 
coiniiiitted 
.ISO  he  was 
possession, 
iillogat  lulls 

oft  of  the 
'or  a  new 
possession 
a  l)«ir  of 
nnihrcilii. 
10  he  was 
lie  iiidici- 
■r  iirticli's 
iddh'  and 
i  itiferrt'd 


WILSON  V.  STATE. 


359 


that  the  other  articles  belonged  to  the  witness  Harden,  as  averred 
in  the  indictment. 

"  To  sustain  this  plea  {autrefois  convict  or  acquit),  it  is  not 
sufficient  simply  to  put  in  the  former  record;  some  evidence 
must  be  given  that  the  oflEenses  charged  in  the  former  and  pres- 
ent indictments  are  the  same.  This  may  be  done  by  showing, 
by  some  person  present  at  the  former  trial,  what  was  the  oflEense 
actually  investigated  there ;  and,  if  that  is  consistent  with  the 
charge  in  the  second  indictment,  a  presumptive  case  will  thus  be 
made  out,  which  must  be  met  by  proof  on  the  other  side,  of  the 
diversity  of  the  two  offenses:"  1  Bishop's  Cr.  Pro.,  sec.  816. 
Both  of  the  pleas  of  former  conviction,  and  not  guilty,  should 
have  been  submitted  to  the  jury  for  their  action,  under  the  direc- 
tion of  the  court,  as  indicated  in  the  opinion. 

As  tl  .  case  must  be  reversed  for  the  error  in  striking  out  the  plea 
of  former  conviction,  it  becomes  necessary  to  inquire  as  to  what 
effect  shall  be  given  to  the  plea  if  found  to  be  true.  On  the 
supposition  that  the  horse  and  saddle  and  saddle-bags  belonged 
to  Criner,  and  the  other  articles  belonged  to  Harden,  and  that  all 
were  taken  at  some  time  and  place,  and  from  the  possession  of 
tlio  same  person,  the  question  would  be  whether  the  taking  in 
the  8up])ost'd  case  would  be  distinct  larcenies,  or  only  one  offense. 
The  authorities  are  found  to  be  conHicting  on  the  qm-stion. 

Wharton  says :  "  Where  a  man  simultaneously  steals  two  arti- 
cles— e.  (/.,  a  horse  and  a  saddle  together — he  may  be  convicted 
oil  separate  indi(!tmeiits  for  each  offense"  (sec.  5(55,  referring  to 
The  State  v.  T/ntnton,  2  McM.  [South  darolinaj,  382).  In  this 
case  the  defendant  was  julicted  for  stealing  cotton -belonging  to 
three  different  individuals,  and  was  convicted  in  the  three  cases; 
and  the  conviction  in  one  case  was  held  to  bo  no  bar  to  the  con- 
viction in  the  two  other. 

The  court  said  :  "  The  stealing  of  the  goods  of  different  per- 
sons is  always  a  distinct  felony,  or  may,  at  least,  he  so  treated  by 
the  solicitor,  if  in  his  discretion  ho  thinks  proper  so  to  do." 
Wharton  also  refers  to  tho  case  of  The  Commonwealth  v. 
Antli'i'ios,  2  Mass.,  409 — an  indictment  for  receiving  stolen  goods 
belonging  to  diirerent  persons. 

These  cases  and  some  others,  citing  English  authority,  sustain 
tlie  doctrine  contended  for.  Th(*  great  weiglit  of  American 
authorities  is  believi'd  to  be  the  othi'r  way. 

In  Tlie  State  v.  Williitnin,  10  Humph.,  101,  a  case  for  stealing 


':    I 


fe>  I 


■ 'ft, 


300 


AMERICAN  CKIMIJS'AL  KEPORTS. 


ageltling,  one  saddle,  one  blanket,  a  bridle  and  martingale,  the 
court  said :  "  Tlie  crime  is  single.  All  the  things  are  charged 
to  have  been  taken  at  the  same  time,  the  same  place,  and  to  have 
been  the  property  of  the  same  individual.  The  crime  being  om,', 
is  indivisible;  that  is,  the  state  could  not  maintain  separate 
prosecutions  against  the  prisoner  for  stealing  the  horse,  for  steal- 
ing the  saddle,  for  stealing  the  blanket,  for  stealing  the  brillo, 
for  stealing  the  martingale ;  for  this  would  be  to  punish  him  live 
times  for  one  oflfense ;  and  yet  this  would  be  the  consequence,  if 
the  positions  assumed  in  behalf  of  the  prisoner  were  sustained.'' 

Also,  Loriofi  v.  The  State,  7  Mo.  Rep.,  55,  Lorton  was 
indicted  by  the  grand  jury  of  St.  Louis  county,  for  stealing  the 
goods  of  Richard  Curie,  and,  at  the  same  time,  was  indicted  for 
stealing  the  goods  of  John  B.  Gibson.  The  defendant  pleaded 
guilty  to  the  first  indictment,  and,  to  the  second,  pleaded  a  former 
conviction  for  the  same  offense.  The  prisoner  had  been  sen- 
tenced, under  the  first  indictment,  to  two  years'  imprisonment  in 
the  penitentiary.  On  the  second  trial  he  asked  the  court  to 
instruct  the  jury  that  if  they  believed,  from  the  evidence,  that 
the  goods  of  Curie  and  Gibson  were  stolen  at  one  and  the  same 
time,  then  the  circumstance  of  said  goods  belonging  to  sejiarate 
owners  did  not  constitute  several  offenses,  and  that  if  any  person, 
by  the  same  act,  and  at  the  same  time,  should  steal  the  goods  of 
A,  B  and  C,  tliis  constituted  but  one  felony  or  offense  against  the 
state;  and  that  if  they  should  believe,  under  the  preceding 
instruction,  that  the  stealing  of  the  goods  of  said  Curie  and  Gib- 
son was  one  transaction,  then  the  former  conviction  of  the  pris- 
oner operated  as  a  bar.  Tliis  instruction  was  refused.  On 
appeal  to  the  Supreme  Court,  it  was  held  that  the  instruction 
should  have  been  given. 

The  Supreme  Court  said:  "The  stealing  of  several  articles 
of  property,  at  the  same  time  and  place,  undoubtedly  constitutes 
but  one  offense  against  the  law;  and  the  circumstance  of  several 
ownerships  cannot  increase  or  mitigate  the  nature  of  the  offense." 

In  the  general  form  of  indictment  at  common  law,  for  lar- 
ceny, the  goods  are  desciribed  as  belonging  to  different  owners  : 
3  Ciiitty's  Cr.  Law,  955).  Under  this  form  is  found  the  follow- 
ing note ;  "  Where  several  persons'  goods  are  taken  at  the  same 
time,  so  that  the  transaction  is  the  same,  the  indictment  may 
properly  include  the  whole;  but  not  so,  if  the  takings  were  at 
different  times."     Hero  the  stealing  of  the  goods  of  different 


■'t™ 


WILSON  V.  STATE. 


361 


persons,  at  the  same  time,  is  treated  as  grand  larceny,  and  as 
being  but  one  transaction. 

In  the  case  of  Jackson  v.  The  /State,  and  the  case  of  Lanpher 
V.  The  State,  14  Ind.  R.,  327,  reporting  but  one  of  the  cases,  the 
indictment  charged  the  defendant  with  stealing  two  horses.  It 
appeared  that  he  stole,  with  the  horses,  saddles  and  bridles, 
though  not  so  charged  in  the  indictment,  and  this  was  objected 
to  as  a  fatal  variance.  The  court  held  "that  the  omission  to 
include  in  the  indictment  other  articles  stolen  at  the  same  time, 
and  forming  a  part  of  a  single  offense,  was  for  the  defendant's 
beneiit,  if  it  had  any  bearing  in  the  case.  The  state  cannot  split 
up  one  crime  and  prosecute  it  in  parts.  A  prosecution,  for  any 
part  of  a  single  crime,  bars  any  further  prosecution  based  upon 
the  whole  or  a  part  of  the  same  crime." 

Also,  Roherts  t&  Copenherden  v.  The  State  of  Georgia,  14 
Ga.,  12.  In  this  case  the  court  said :  "  The  plea  of  autrefois 
acquit  or  convict,  is  sufficient,  whenever  the  proof  shows  the 
second  case  to  be  the  same  transaction  with  the  iirst." 

On  the  same  point,  2  Graham  &  Waterman  on  New  Trials, 
U,  55. 

Our  conclusion  is,  that  the  stealing  of  different  articles  of 
property  belonging  to  different  persons,  at  the  same  time  and 
place,  so  that  the  transaction  is  the  same,  is  but  one  offense 
against  the  state,  and  that  the  accused  cannot  be  convicted  on 
separate  indictments,  charging  different  parts  of  one  transaction 
as  a  distinct  offense.  A  conviction  on  one  of  the  indictments 
bars  a  prosecution  on  the  others. 

VV^hether  or  not  the  appellant  can  bring  his  case  within  this 
rule  can  only  appear  on  another  trial. 

Tlio  present  case  does  not  affect  the  punishment  of  theft,  under 
spi'citied  circumstances,  as  where  it  is  coupledwith  burglaiy,  and 
tlie  punishment  is  doubltul,  iis  provided  by  tiie  statute. 

It  is  not  necessary  to  dtniido  to  what  extent  offenses,  other  than 
theft,  may  come  within  the  scope  of  this  opinion. 

For  the  error  in  striking  out  the  special  plea  in  bai",  tiie  case  ia 
reversed  and  remanded. 

Reversed  a/nd  remanded. 


362 


AMERICAN  CRIMINAL  REPORTS. 


li 

;:    '■ 

.   \ 

HcTCHiNsoN  V.  Commonwealth. 

(82  Pa.  St.,  472.) 

Labcbnt:    Bailees — Agents — Trustees—  Writ  of  error  allotBoble  nuru  pro  tuna- 
Demurrer  to  evidence. 

Where,  by  an  oversight,  there  was  no  formal  allowance  of  a  writ  of  error, 
but  the  court  can  see  that  it  would  and  should  have  been  allowed,  on  a 
motion  to  quash  the  writ  of  error  for  want  of  an  order  allowing  it,  the  court 
will  make  the  order  of  allowance  nunc  pro  tunc. 

Where  the  defendants  received  an  accepted  order  for  so  many  barrels  of  crude 
petroleum,  which,  at  the  time,  was  in  the  tanks  and  pipes  of  the  Union 
Pipe  Line  Co.,  mixed  with  petroleum  belonging  to  many  others,  the 
defendants  receiving  the  accepted  order  on  an  agreement  to  siore  the 
petroleum  represented  by  the  order  at  a  specified  rate  i)er  month,  the 
delivery  of  the  order  is  a  delivery  of  the  petroleum  sutHcient  to  consti- 
tute the  defendants'  bailees,  and  if  by  means  of  the  order  they  draw  aud 
receive  the  petroleum  from  the  Pipe  Line  Co.,  and  convert  it  to  their  owu 
use,  they  arc  guilty  of  larceny  as  bailees. 

Embezzlement  by  trustees  being  a  different  offense  from  embezzlement  by- 
agents,  a  count  which  charges  the  defendants  with  embezzlement  "  as 
trustees  and  agents,"  charges  two  <listinct  offenses,  and  is  bad  for 
duplicity. 

Where  in  a  criminal  prosecution  the  defendant  demurs  to  the  evidence,  lie 
waives  his  right  to  have  the  jury  pass  upon  the  case;  and  it  is  projjcr  for 
the  court  to  discharge  the  jury  and  give  judgment  upon  the  whole  ease, 
upon  the  facts  as  well  as  upon  the  law. 

Paxson,  J.  There  was  ii  cerHoniri  as  well  as  MTit  of  error  in 
this  case.  The  former  was  specially  allowed  by  our  brother 
AVilliams  at  chambers.  There  was  no  allowance  of  the  writ  uf 
error,  although  issued  simultaneously  with  the  cerfiot'dri.  This 
was  evidently  an  oversight.  The  commonwealth  moved  to  (jiia>li 
both  writs,  and  assigned  as  reason  therefor:  1.  Informality  in 
the  allowance  of  the  writs ;  and,  2.  That  neither  ('crtionirl  nor 
writ  of  error  would  lie  in  the  case. 

The  objections  are  purely  formal,  and  inasmuch  as  the  record 
presents  a  j^roper  ease  for  review,  we  havt!  no  hesitation  in 
allowing  the  writ  of  error  nunc  pro  tunc.  The  act  of  liHli 
May,  1874:  (Pamph.  L.,  2I!>),  makes  ample  provision  for  writs  of 
error  and  certloravi  in  criminal  pmceedingB.  In  all  cases  of 
felonious  homicide,  and  in  all  other  such  criminal  cases  as  aro 
triable  exclusively  in  the  oyer  and  terminer,  said  writs  are  of 


10  pro  tuna— 


HUTCHINSON  v.  COMMONWEALTH. 


863 


light.     In  all  other  criminal  cases,  they  may  be  issued  whenever 
allowed  by  this  court,  or  a  judge  thereof. 

Upon  the  trial  in  the  court  below,  a  motion  was  made  on 
liehalf  of  the  defendants  to  quash  the  bill  of  indictment.  The 
motion  was  refused,  and  this  ruling  of  the  court  forms  the  sub- 
ject of  the  first  seven  specifications  of  error.  "We  are  of  opinion 
that  the  first,  third  and  fourth  cou  its  are  fatally  defective,  and 
ought  to  have  been  quashed.  The  first  count  charges  the  defend- 
ants with  embezzlement  "as  trustees  and  agents."  Here  is  a 
blending  of  two  offenses  in  one  count,  which  is  not  allowed  in 
c'riinin.il  pleading.  Embezzlement  by  trustees  is  one  offense; 
embezzlement  by  agents  is  another,  and  indictable  under  a  differ- 
ent section  of  the  code.  Offenses  which  are  a  part  of  the  same 
transaction  may  be  joined  in  the  same  indictment,  when  it  is 
triable  in  the  quarter  sessions,  even  though  one  of  said  offenses 
be  a  felony :  Hunter  v.  Commonwealth,  29  P.  F.  Smith,  503. 
This,  however,  does  not  justify  tlie  joining  of  separate  offenses 
in  one  count.  The  third  count  charges  the  defendants  with 
embezzlement  as  bailees.  There  is  no  such  offense  at  common 
law,  or  under  the  code.  The  fourth  count  charges  the  defend- 
ants with  embezzlement  as  "  trustees,  agents  and  bailees."  This 
is  defective,  for  the  reason  stated  in  regard  to  tlie  first  count. 

The  second  count  is,  pcrlinps,  sufficient  in  point  of  law.  It 
charges  embezzlement  as  "  agents."  It,  is,  however,  of  no  j)mc- 
tical  importance,  as  there  was  no  evidence  to  sui)})ort  it.  The 
defendants  were  not  the  "agents"  of  the  prosecutor.  This 
obviates  the  necessity  of  any  drscussion  as  to  whether  the  defend- 
ants were  professional  agents.  This  conviction,  If  sustained  at 
all,  must  rest  solely  upon  the  fifth  and  last  coutit  of  the  indict- 
ment. Thiscuuiit  cIiMiges  tlio  defendants  with  larceny  as  bailees. 
It  is  true  tlu'  blumkr  of  joining  the  words  "l)ailces  and  agents" 
is  a^'iiiii  rcpiMited,  Init  we  think  with  a  diirerent  result.  There  is 
not  a  blending  of  two  or  more  separate  olfenses  in  the  one  count, 
as  is  the  case  in  the  first  and  fonrtii  counts.  There  is  no  section 
of  the  code  which  defines  and  j^uiiislies  such  an  offense  as  larceny 
by  "ngents."  Ileuce,  the  word  "  agents  "  does  not  introduce 
another  offense  into  this  count,  and  may  be  rejected  as  surphis- 
age.  This  brings  us  to  the  important  (|ue8tion  in  the  case,  viz. : 
was  the  evidence  for  the  commonwealth  sufficient  to  sustain  a 
conviction  of  htrceny  as  bailees  j  The  defendants  demurred  to 
tlie  evidence,  and  the  district  attorney  having  joined  therein,  the 


i'll 


■f\Vf 


PI!»l,V||li.   ;     ,-J||j 


864 


AiyiERICAN  CRIMINAL  REPORTS. 


■'-U 


i 

i 

iH     ' 


i      \ 


It  '- 

Ij    *• 

/  ! 

1 

I\' 

i 

HI 

i 

m. 

i 

SI  ■ 

i 

court  discliargetl  the  jury  and  gave  judgment  for  the  common- 
wealth upon  tlie  demurrer.  The  discharge  of  the  jury  is  one  of 
the  errors  assigned.  In  this  we  think  the  court  below  was  right. 
It  is  true,  a  jury  are  not  only  judges  of  the  facts  in  a  criminal 
case,  but  they  are  also  judges  of  the  law,  under  the  advice  and 
instruction  of  the  court.  It  was  in  the  power  of  the  defendants 
to  require  the  jury  to  pass  upon  the  whole  case.  But  they 
waived  this  right  by  their  demurrer  to  the  evidence.  By  this 
act  they  threw  the  decision  of  both  the  law  and  the  fact''  npon 
the  court,  and  the  discharge  of  the  jury  was  entirely  proper. 
They  had  no  further  functions  to  perform  :  Comv)^nweaJfIi  v. 
Parr,  5  W.  and  S.,  345,  In  the  consideration  of  the  question, 
whether  the  court  below  was  right  in  adjudging  the  defendants 
guilty  under  the  evidence,  the  first  thought  that  naturally  sug- 
gests itself  is,  was  there  a  bailment  of  the  oil  ?  This  involves  a 
brief  stuteniont  of  the  facts  as  proved  upon  the  trial,  and 
admitted  by  the  demurrer. 

On  the  13th  of  July,  1874,  R.  L.  Bishop,  the  prosecutor,  was 
the  owner  of  1,083  barrels  of  crude  petroleum.  This  oil  was  in 
the  pipes  .or  tanks  of  the  Union  Pipe  Line,  and  Mr.  Bishop  held 
as  the  evidence  of  his  title,  two  accepted  orders  on  said  company. 
On  the  day  above  named,  Mr.  Bishop  delivered  these  orders  to 
the  firm  of  Hutchinson  «fe  Batchelder,  the  defendants,  and  took 
from  them  the  following  receipt : 

"Pakker's  Landing,  Pa.,  July  13th,  1874. 

"Eeceived  of  Mr.  R.  L.  Bishop,  ten  hundred  and  eightythrt'e 

•^  barrels  of  united  oil,  pipage  unpaid,  to  be  held  for  storage 

on  the  foUowitig  terms:  five  cents  a  barrel  per  month,  or  tifty 

cents  for  twelve  months. 

"HUTCHINSON  &  BATCHELDKR." 

On  the  13th  of  August,  1874,  the  defendants  received  from 
the  prosecutor  103  jY^  barrels  of  petroleum,  in  the  same  nianiu'i' 
and  upon  the  same  terms.  At  the  time  of  the  delivery  of  the 
said  accepto<l  orders,  the  oil  referred  to  was  in  the  numerous 
tanks  or  lines  of  ])ipes  of  the  Union  Pipe  Line  Company,  jwpI 
were  wholly  indistinguishable  from  the  thousands  of  barrels  of 
other  oil  in  .said  pijx's  or  tanks.  After  the  defendants  received 
the  orders,  they  dej)osited  them  to  the  credit  of  their  gcneml 
acf^ount  with  the  pij)e  line,  and  thereafter  continued  to  deposit 
and  draw  until  the  spring  of  1875,  when    defendants  became 


common- 
is  one  of 
was  riglit. 
a  criminal 
dvice  and 
efendants 
But  they 
By  thi's 
act-  'ipon 

y  proper. 
wealfli  V. 

question, 
efendants 
rally  sug- 
nvolves  a 
ti'ial,  and 

iutor,  was 
jii  was  in 
liop  lield 
2omj)any. 
orders  to 
and  took 

th,  1874. 

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I'  storaife 
I,  or  iifty 

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y  of  the 
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my,  and 
iirrels  of 
received 

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dej)osit 

hecame 


HUTCHINSON  v.  C03IM0NWEALTH. 


365 


linancially  embarrassed.     In  order  to  meet  their  engagements, 
tiicy  continued  to  draw  upon  the  balance  in  their  favor  on  the 
books  of   the  pipe  line   until  their  failure  in  August,  1875. 
When  the  prosecutor  demanded  his  oil,  they  were  unable  to 
deliver  it,  for  the  reason  that  they  had  drawn  all,  or  nearly  all, 
the  oil  out  of  the  pipes  to  pay  tneir  debts.     The  case  presented 
by  this  brief  statement  is  believed  to  be  without  precedent.     Of 
all  the  numerous  casee  in  the  books,  I  have  found  no  one  that 
resembles  it  in  all  its  essential  features.    If  we  take  the  receipt 
of  the  defendants  as  conclusive  upon  them,  it  would  establish  a 
bailment.     But  a  receipt  has  never  been  held  to  be  conclusive, 
even  in  a  civil  case.     The  explanation  of  it  furnished  by  the  evi- 
dence in  the  case,  discloses  substantially  the  facts  above  stated. 
It  was  contended,  on  behalf  of  the -defendants,  that  there  was  no 
Ijailnient,  because  there  was  no  separation  of  the  prosecutor's  oil 
from  the  immense  quantity  of  other  oil  in  the  pipes  and  tanks 
of  the  Pipe  Line  Company,  and  that  as  a  sequence  there  was 
no  delivery.     This  is  the  vital  point  in  the  case.     If  there  was 
no  delivery  of  the  oil  there  was  no  bailment.     We  have  a  long 
line  of  cases  in  England  and  this  country  involving  the  question 
as  to  how  far  a  sale  of  goods  is  complete  when  the  article  sold 
has  not  been  separated  from  other  goods  or  property  of  like 
character.     The  subject  is  discussed  at  considerable  length,  and 
the  authorities  reviewed  by  Mr.  Justice  Rogers,  in  Hutchinson 
v.  Hunter.  7  Barr,  140.     The  rule  which  is  there  deduced  from 
the  authorities  is,  that  'Uhe  goods  sold  must  be  ascertained, 
designated  and  separated  from  the  stock  or  quantity  with  which 
they  are  mixed  before  the  ]>roperty  can  pass.  Until  this  be  done, 
it  remains  the  property  of  the  vendor,  and  if  destroyed  by  fire 
or  otherwise,  it  is  the  loss  of  the  vendor  and  not  of  the  vendee." 
This  was  undoubtedly  the  proper  rule  to  apply  to  the  case 
before  the  court,  in  Hutchinson  v.  Hunter.    The  merchandise 
which  had  been  sold  consisted  of  one  hundred  barrels  of  molasses, 
out  of  a  lot  of  one  hundred  and  twenty-five  barrels.     The  barrels 
varied  in  quantity,  and  had  not  been  gauged ;  were  not  separated 
or  marked,  nor  were  any  particular  barrels  agreed  upon.     The 
facts  brought  the  case  precisely  within  the  rule  laid  down  by 
Chancellor  Kent  (2  Com.,  496):     "If  anything  remains  to  be 
done  between  the  seller  and  the  buyer  before  the  goods  are  to  be 
delivered,  a  present  right  of  property  does  not  attach  to  the 
buyer.     The  goods  sold   must  bo  asc'ortained,  designated  and 


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866 


AMERICAN  CRIMINAL  REPORTS. 


septirated  from  the  stock  in  quantity  with  which  they  are  mixed 
before  the  property  can  pass.     It  is  a  fundamental  principle 
pervading  everywhere  the  doctrine  of  sales,  that  if  goods  be  sold 
by  number,  weight  or  measui'e,  the  sale  is  incomplete,  and  the 
risk  continues  with   the   seller,  until  the  specific  property  be 
separated  and  identified."     This  principle  runs  through  all  the 
cases  upon  this  subject,  and  is  too  firmly  established  to  be  shaken. 
Nor  are  we  disposed  to  question  its  soundness.     If  this  cannot  he 
distinguished  from  those  to  which  the  rule  has  heretofore  been 
applied,  there  was  neither  a  delivery  nor  a  bailment  of  the  oil. 
An  examination  of  our  own,  as  well  as  the  English  cases,  dis- 
closes the  fact  that,  as  between  the  vendor  and  vendee,  some- 
thing remained  to  be  done  in  order  to  ascertain  the  property  and 
render  the  delivery  complete.     In  Smith  v.  Crait/,  3  W.  &  S., 
14,  the  rum  and  molasses  were  to  be  gauged,  and  the  price  fixed 
at  the  purchaser's  warehouse  ;  an  act  that  was  prevented  by  the 
vendor's  retention  of  the  property  in  his  actual  custody.     Said 
retention  was  held  to  excuse  actual  performance,  and  the  prop- 
erty passed.     In  Austen  v.    Graven,  4  Taunt,,  643,  the  sugar 
which  was  the  subject  of  the  contract,  required  to  be  weighed  in 
order  to  ascertain  the  quantity.     So  in  Burk  v.  Davis,  2  M.  «fe 
Selw.,  397,  the  quantity  of  flax  to  be  delivered  was  to  be  ascer- 
tained by  the  wharfinger's  weighing  it  (the  mats  being  of  uneciual 
quantities,  so  that  a  fraction  of  a  mat  might  be  required),  and  an 
allowance  for  the  tare  and  draft  was  to  be  made  by  the  weight. 
In  Gregory  v.  Furnell,  2  Camp.,  240,  there  was  a  sale  of  t\vi» 
hundred  and  eighty-nine  bales  of  goat-skins,  five  dozen  in  each 
bale.     It  appeared  that,  hy  the  usage  of  trade,  it  was  the  duty  of 
the  seller  of  goat-skins  by  bales  in  this  manner,  to  count  them 
over,  that  it  may  be  seen  whether  each  bale  contains  the  number 
specified  in  the  contract.     Before  they  were  so  counted  the  skins 
were  destroyed  by  fire  at  the  wharf,  where  they  lay  at  the  time 
of  the  sale.     It  was  held  by  Lord  Ellenborough  that,  as  the 
enumeration  of  the  skins  was  necessary  to  ascertain  the  price, 
which  was  an  act  for  the  benefit  of  the  seller,  and  as  this  act 
remained  to  be  done  by  him  when  the  fire  happened,  there  was 
not  a  complete  transfer  to  the  purcliasc'r,  and  the  skins  continued 
at  the  seller's  risk.     In  White  v.   Wills,  5  Taunt.,  17f>,  there 
was  a  sale  of  twenty  tons  of  oil  out  of  a  merchant's  stock,  con- 
sisting of  several  large  quantities  of  oil  in  divers  cisterns,  in 
divers  places.     Here  the  oil  had  to  be  weighed  and  separated. 


HUTCHINSON  v.  COMMONWEALTH. 


367 


}yh!U'hou'<e  V.  Fi-ost,  12  East,  614,  was  also  a  case  of  oil,  and 
bears  a  closer  analogy  to  the  case  under  consideration  than  any 
that  I  have  found.  There,  A,  having  forty  tons  of  oil  secured 
in  the  same  cistern,  sold  ten  tons  to  B,  and  received  the  price. 
B  sold  the  same  to  C,  and  took  his  acceptance  of  the  price  at 
four  months,  and  gave  him  a  written  order  for  delivery  on  A, 
who  wrote  and  signed  his  acceptance  on  said  order,  but  no  actual 
delivery  was  made  of  the  ten  tons,  which  continued  mixed  with 
the  rest  in  A's  cistern.  Held,  that  this  was  a  complete  delivery 
in  law  of  the  ten  tons  by  B  to  Cj  nothing  remaining  to  be  done 
on  the  part  of  the  seller,  though  as  between  him  and  A,  it 
remained  to  be  measured  off ;  and  therefore  the  seller  could  not, 
on  the  bankruptcy  of  the  buyer,  before  his  acceptance  became 
due,  countermand  the  measuring  off  and  delivery  in  fact  to  the 
then  buyer.  This  case  was  undoubtedly  decided  against  the  cur- 
rent of  authority.  It  was  questioned  in  White  v.  Wilks,  swpra, 
and  Austen  v.  Craven,  supra,  and  may  now  be  considered  as 
overruled.  The  oil  was  sold  by  the  ton.  It  was  necessary  not 
only  to  set  it  apart,  but  to  weigh  it.  It  could  be  truly  said  that 
one  ton  was  the  exact  counterpart  of  any  other  ton,  for  the  rea- 
son stated  in  the  note  to  White  v.  WilJcs,  that  fluids  are  affected 
by  a  change  of  temperature;  those  portions  which  are  most 
exposed  to  heat  becoming  lighter,  while  those  portions  not  so 
exposed  are  correspondingly  heavier. 

It  would  be  unprofitable  to  further  follow  up  this  line  of 
cases.  I  have  cited  enough  to  show  what  pervades  them  all,  that 
something  remained  to  be  done  as  between  the  vendor  and 
vendee,  to  ascertain  the  quantity,  quality  or  price.  When  noth- 
ing of  the  kind  remains  to  be  done,  as  was  said  in  Scott  v.  Wells, 
6  W.  &  S.,  357,  the  ownership  and  risk  pass  by  a  contract  of  sale 
witliout  actual  delivery.  To  the  same  point  is  Rugg  v.  Minet, 
11  East,  210.  But  it  must  be  conceded  that  where  something' 
remains  to  be  done  by  the  vendor  to  separate  the  goods  and  to 
enable  the  purchaser  to  get  the  actual  custody  and  possession,  the 
rijjlit  of  property  would  not  pass,  .and  the  latter  could  not  main- 
tain an  action  of  trover  and  conversion  upon  a  refusa"  to  deliver. 
It  is  almost  needless  to  say  that  there  could  be  no  bailment  where 
there  was  neither  title  nor  possession  in  the  bailor.  Ho  could 
make  no  delivery,  and  delivery  is  the  essence  of  a  bailment. 

It  remains  to  be  seen  whether  the  principles  of  law  above 
referred  to  are  applicable  to  the  facts  of  the  case.    We  must  not 


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AMERICAN  CRIMINAL  REPORTS 


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IS 

1 

''liiH^ ' ' 

make  the  mistake  of  applying  teclinical  niles  of  law  to  pases  for 
which  they  were  not  intended,  and  to  which  they  have  no  proper 
application.  An  examination  of  the  faets  of  this  case  sliows  it 
to  differ  in  many  essential  features  from  any  of  those  cited,  or 
any  of  the  cognate  cases.  In  the  first  place,  it  is  to  he  observed 
that  in  all  of  them  the  property  sold  was  part  of  a  larger  quantity 
belonging  to  the  vendor,  and  in  his  possession,  from  which  it 
had  not  been  separated  or  distinguished.  Such  was  not  the  ease 
here.  The  oil  which  is  the  subject  of  this  contention  was  not 
mixed  with  any  other  oil  of  the  prosecutor.  It  required  no 
separation  from  any  other  portion  of  his  property.  It  was  not 
even  in  his  actual  custody  or  possession.  He  had  the  construc- 
tive possession  by  virtue  of  his  accepted  orders.  When,  there- 
fore, he  delivered  the  orders  to  the  defendants,  there  was  notliinnr 
remaining  for  him  to  do  to  complete  the  transaction.  He  had 
done  all  in  his  power  to  render  the  delivery  complete.  The  oil 
wrs  in  the  pipes  of  the  Pipe  Line  Company.  For  the  sake  of 
convenience  it  was  poured  in  and  mixed  with  the  oil  of  otiier 
producers,  and,  by  the  usage  of  trade,  each  one  was  entitled  to 
draw  out,  not  the  identical  oil  put  in,  but  oil  which  is  its  precise 
equivalent.  In  the  consideration  of  the  questions  involved  in 
this  case,  we  cannot  close  our  eyes  to  the  total  revolution  in  the 
manner  of  doing  business  which  has  been  brought  about  by  the 
discovery  of  petroleum  in  this  state.  It  has  devolo])ed  a  new 
industry  of  vast  importance.  Methods  for  conducting  it  have 
been  devised  and  put  in  operation  which  were  wholly  unknown 
when  the  cases  I  hare  cited  were  decided.  Instead  of  oil  being 
hauled  a  long  distance  from  the  well  to  a  market  or  shij^jiina; 
station,  and  there  stored  in  barrels  or  in  tanks  in  a  merchant's 
warerooms,  it  is  now  turned  at  once  by  the  producer  into  the 
pipes  of  the  l*ipe  Line  Company,  and  thence  condncted  to  the 
line  of  the  railroad  or  canal  for  shipment,  or  may  be  held  in  said 
pipes,  or  the  tanks  connected  therewith.  Each  producer  knows 
that  his  oil  is  mixed  with  the  oil  of  other  producers.  Each 
barrel  of  oil  in  the  pipes  is  the  precise  counterpart  of  every  other 
barrel  contained  therein.  It  differs  neither  in  (juantity,  quality 
nor  price.  The  oil  is  sold  and  passes  from  hand  to  hand  ujxm 
the  accepted  orders  or  certificates  of  the  Pipe  Line  Company. 
And  here,  again,  there  is  a  marked  distinction  between  this  and 
any  of  the  cases  cited.  It  was  distinctly  proved  upon  the  trial 
that  the  delivery  of  the  certificates  was  a  delivery  of  the  oil.     It 


HUTCHINSON  t.  COMMONWEALTH. 


369 


was  the  usage  of  the  trade,  known  to  all  tliese  parties.     It  was, 
consequently,  a   part  of  their  contract :     Zayury  v.   Fennell, 
and  Scott  v.  Wells,   sfupra.      The  defendants   recognized   this 
usage  by   their   receipt.       For  all  the  purposes  of  trade  and 
commerce   the    delivery   of  the    accepted    orders  was  a  deliv- 
ery of  the  oil.     This  is  a  matter  of  fact,  established    by  the 
evidence  and  admitted  by  the  demurrer.     Thousands  of  barrels 
of  oil  are  sold  and  delivered  daily  in  the  market  upon  similar 
orders.    No  one  doubts  that  the  property  passes ;  that  the  orders 
Jlra^v'  to  them  the  constructive  possession,  and  tliat  the  delivery 
of  said  orders  is  a  symbolical  delivery  of  tlie  oil.    None  of  the 
reasons  which  required  a  separation  of  the  oil  in  the  cases  cited, 
exists  here.     It  is  mixed  for  the  convenience  of  those  dealing 
witli  the  Pipe  Line  Company.     It  is  separated  l)y  the  latter  when 
the  holder  of  the  order  requires  it.     By  the  usage  of  the  trade, 
lie  accepts  the  oil  as  it  is  drawn  from  the  lines,  and  receives  the 
precise  equivalent  in   quantity,  quality  and   value.     It  would 
seriously  embarrass  this  large  and  valuable  industry  were  we  to 
hold  that  in  such  transactions  the  delivery  of  the  orders  was  not 
a  delivery  of  the  oil.     How  can  tliese  defendants  allege,  with 
reason,  that  as  to  them  there  was  no  delivery,  when,  in  point  of 
fact,  they  drew  the  oil  out  of  the  pipes  and  applied  it  to  the  pay- 
ment of  their  debts  ?     That  such  was  the  fact,  clearly  ai)pears 
from  the  evidence.     If  it  had  not  been  drawn  out,  it  would  have 
been  in  the  pipes  still,  to  meet  the  demand  of  the  prosecutor. 
Even  if  the  delivery  of  the  orders  was  not  a  complete  delivery 
of  the  oil  at  the  time,  such  delivery  became  complete  when  the 
defendants  drew  it  out,  or  enabled  others  to  draw  it  out  by  a 
transfer  of  the  orders.     It  would  render  the  law  conteraptiMe  in 
the  eyes  of  business  men,  were  it  to  say  that  there  was  no  deliv- 
ery of  this  oil,  when,  as  a  matter  fact,  there  was  a  delivery  for 
all  the  purposes  of  trade  and  conunerce ;   such   a  delivery   as 
enabled  the  defendants  to  sell  it,  and  apply  the  proceeds  to  the 
payments  of  their  debts. 

The  princij)le  contended  for  by  the  plsiintiflE  in  error  rests  ujion 
the  merest  technicality.  The  tendency  of  modern  legislation, 
ae  well  as  judicial  decision,  is  to  do  away,  as  far  as  possible,  with 
the  subtle  and  refined  distinctions  of  the  common  law,  when  they 
interfere  with  substantial  justice.  As  was  observed,  in  Ihmtei-  v. 
Comnumwcalth,  29  P.  F.  Smith,  503,  "  the  revised  criminal  code 
and  the  criminal  procedure  act,  have  brushed  away  many  of  these 
Vol.  II.-24 


I'i 


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370 


AMERICAN  CRIMINAL  REPORTS. 


sf 


unseemly  niceties.''  In  each  of  tlie  sections  of  the  code  here- 
inafter cited,  artificial  rules  have  given  place  to  the  advancing 
spirit  of  practical  common  setise  in  our  legislation,  and  defects 
in  the  common  law,  long  seen  and  acknowledged,  have  heen  su))- 
plied.  As  evidence  of  the  legislative  intent  to  regard  substance 
rather  than  mere  form,  it  may  not  be  inappropriate  to  refer  to 
the  12-tth  section  of  the  act  of  1860,  defining  tlie  words  "trus- 
tee" and  "property,"  as  used  in  said  act.  It  is  there  said  that 
"  the  word  '  property '  shall  include  every  description  of  real  and 
personal  property,  money,  debts  and  legacies,  and  all  deeds  and 
instruments  relating  or  evidencing  the  right  or  title  to  recover  or 
receive  any  money  or  goods,  and  shall  also  include  not  only  such 
property  as  may  have  been  the  original  subject  of  a  trust,  bu«^^ 
any  property  in  which  the  same  may  have  been  converted,  and 
the  })roceed8  thereof,  respectively,  or  any  thing  acquired  by  sucli 
proceeds."  This  language  is  very  comprehensive,  and  evidently 
means  that  an  offender  shall  not  slielter  Iiiinself  behind  technical 
rules,  based  upon  a  change  of  the  character  of  the  property  from 
one  species  to  another.  We  do  not  propose  to  give  any  con- 
struction to  the  code  not  warranted  by  its  terms.  But  to  apply 
a  technical  rule  of  law  to  a  case  that  is  not  within  its  reason  or 
spirit,  would  be  almost  as  objectionable. 

If  there  was  a  delivery  of  the  oil,  of  which  we  have  no  doubt, 
it  follows,  necessarily,  that  there  was  a  bailment.  This  brings 
us  to  the  further  question,  whether  the  defendants  fraudulently 
converted  it  to  their  own  use.  This  point  is  free  from  diffi(?iilty. 
Ir  is  a  fraud  pt^r  se  for  a  bailee  to  convert  to  his  own  use  the 
property  committed  to  his  (^are.  The  conversion  is  prima  facis 
evidence  of  the  fraud.  Larceny,  at  common  law,  involves  some- 
thing ni(jre.  It  requires  the  animus  fiirandL  There  must  bo  a 
felonious  taking.  Not  so  with  larceny  as  bailee.  It  requires 
merely  a  fraudulent  conversion.  The  107th,  lOStli,  109th,  113th, 
114th,  116th  and  116th  sections  of  the  act  of  Slst  of  March, 
1860,  were  evidently  intended  to  punish  as  crimes  certain  acts 
wliich,  at  common  law,  were  mere  breaches  of  trust.  Hence, 
fraudulent  conversions  of  property  by  bailees,  trustees,  clerks, 
servants,  bankers,  brokers,  attorneys,  ottlcers  of  biinks,  and  (»ther 
corporations,  are  made  criminal  offenses  by  the  sections  referred 
to.  It  is  not  required  by  the  108th  section,  that  the  conversion 
by  a  bailee  shall  be  with  the  intent  to  (fffraud.  The  omission 
of  these  words  is  significant;  the  more  so,  fnuu  the  fact  that 


HUTCHINSON  V.  COMMONWEALTH. 


371 


they  are  used  in  the  113th  section  relating  to  trustees,  and  the 
104th  section  relating  to  bankers,  brokers,  attorneys,  merchants 
and  agents.  In  the  oase  of  a  bailment,  therefore,  so  far  as  the 
intent  to  defraud  may  be  regarded  as  of  the  essence  of  the  crime, 
it  must  be  presumed  from  the  unlawful  conversion.  If  I  deposit 
my  pocket-book  for  safe  keeping  over  night  with  my  landlord, 
and  he  opens  it  and  converts  the  contents  to  his  own  use,  he  is  a 
thief  both  in  law  and  morals.  Nor  does  it  matter  that  he  has 
parted  with  it  to  pay  his  debt  under  the  stress  of  an  execution, 
with  the  intention  of  restoring  it  to  me  ultimately.  Such  a 
transaction  would  be  trangressive  of  the  108th  section  of  the  act 
of  1860,  and  the  conversion  would  be  evidence  of  the  fraud. 
But  it  is  said  that  the  defendants  were  bankers  in  oil,  and  that 
the  case  resembles  that  of  an  ordinary  banker  who  receives 
moneys  upon  deposit.  It  is  difficult  to  see  the  analogy.  By  the 
law  and  the  usage  of  banking,  the  depositor  who  nuikts  a  general 
deposit  of  his  money  becomes  a  mere  creditor  of  the  banker. 
The  money  deposited  becomes  the  property  of  the  banker.  He 
has  a  right  to  use  it  in  his  legitimate  business.  He  may  loan  it 
out  to  his  customers  upon  such  security,  and  upon  such  terms,  as 
are  usual  with  bankers.  No  such  state  of  facts  exists  here.  The 
defendants  acquired  no  property  in,  nor  right  to  use  the  prosecu- 
tor's oil.  It  was  deposited  with  them  for  storage  and  safe  keep- 
ing only,  for  which  they  were  to  be  paid  a  compensation  agreed 
upon.  What  right  had  they  to  sell  it  to  pay  their  debts,  or  for 
any  other  purpose  ?  That  they  became  embarrassed  in  their  cir- 
cumstances affords  them  no  justification.  They  had  no  right  to 
lay  their  hands  upon  the  property  of  the  prosecutor  confided  to 
tliciii  for  safe  keeping,  in  order  to  relieve  themselves.  Upon  a 
careful  consideration  of  the  whole  case,  we  are  of  opinion  that 
the  learned  judge  of  the  court  below  was  right  in  adjudging  that 
the  defendants  were  guilty  of  larceny  as  bailees.  The  fact  that 
the  indictment  included  other  counts  which  were  defective,  is 
not  material.  One  good  count  is  sufficient  to  sustain  the  sen- 
tence :  Commonwealth  v.  McKissoriy  8  S.  and  B.,  420 ;  Ilazen 
V.  Coinmonwealth,  11  Harris,  356. 

The  judgment  of  the  court  of  quarter  sessions  is  affirmed. 
And  it  is  further  ordered  that  Peter  Hutchinson  and  "W".  S. 
Batiiheldor,  the  plaintiffs  in  error,  be  remanded  to  the  custody 
of  thu  keeper  of  the  Allegheny  county  work-house,  there  to  be 
conliiied  according  to  law  and  the  sentence  of  the  court  below, 


p 

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■ 

|.:.'^ 


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f. 


)    i 


il    ill 

I 'I 


wm 


AMERICAN  CRIMINAL  REPORTS. 


for  the  residue  of  the  term  to  which  they  were  respectively  sen- 
tenced,  and  which  has  not  expired,  on  the  23d  day  of  February, 
1876,  when  the  writs  of  error  and  cet'tiot'ari  in  this  case  were 
lodged  in  the  office  of  the  clerk  of  the  court  of  quarter  sessions 
and  that  the  record  be  remitted  to  said  court  with  instructions  to 
carry  this  order  into  effect. 
Mercer,  J.,  dissented. 


Smith  v.  State. 

(58  Ind.,  840.) 

Larcbnt:    Recent  possession  of  stol«n  'property  —  Erroneous  eluirge. 

The  presumption  or  inference  of  guilt  arising  from  tlie  exclusive  possession  of 
stolen  property,  recently  after  the  larceny,  is  purely  a  question  of  fact  for 
the  jury,  and  it  is  error  to  charge  that,  from  such  recent  possession,  if  not 
satisfactorily  explained  or  accounted  for  by  the  defendant,  the  law  pre- 
sumes the  guilt  of  the  defendant. 

Bee  note  to  State  v.  Cassady,  1  Am.  Cr.  Rep. ,  567,  where  all  the  American  cases 
are  collected. 

NiBLAOK,  J.  Tlic  appellant,  Edward  Smith,  was  jointly 
indicted  in  the  court  below,  with  one  John  "W.  Sterne. 

The  indictment  was  in  two  counts :  The  first  for  burglary, 
and  the  second  for  grand  larceny. 

The  first  count  charged  that  the  defendants,  Smith  and  Sterne, 
on  the  eighth  day  of  April,  1877,  in  the  night  time,  feloniously 
and  burglariously  entered  the  store-house  of  one  Thcophilii!? 
Wright,  with  intent  to  steal,  take  and  carry  away  the  goods  and 
chattels  of  him,  the  said  Wright. 

The  second  count  charged  the  stealing,  at  the  same  time  and 
place,  of  cort'.iin  articles  of  the  personal  property  of  the  said 
Wright,  of  the  aggregate  value  of  near  twenty  dollars,  amongst 
which  were  two  pocket-knives  of  the  value  of  one  dollar  each. 

Smith,  on  a  separate  trial,  wat  found  guilty  of  burglary,  as 
charged  in  the  first  count,  and,  over  a  motion  for  a  now  trial, 
was  sentenced  to  imprisonment  in  the  state  prison  for  three 
years. 

On  the  trial  Sterne  testified  as  a  witness  for  the  state,  and, 
amongst  other  things,  stated  that  he  and  Smith,  with  two  other 
persons  assisting  them,  entered  the  store-house  of  the  eaid 
Wright,  on  the  night  charged  in  the  indictment,  being  a  Sunday 


lerican  cases 


SMITH  V.  STATE. 


373 


night,  and  carried  away  the  personal  property  enumerated  in  the 
second  count  of  the  indictment ;  that  he  took  one  of  the  pocket- 
knives,  and  that  Smith  took  the  other,  wliich  was  a  white-handled 

knife. 

Wriglit  testified  that  on  Tuesday  afternoon,  after  he  lost  the 
goods.  Smith  took  him  to  one  side  and  intimated  that  he,  Smith, 
knew  where  the  goods  were  secreted,  speaking,  at  the  same  time, 
of  Sterne  as  the  person  who  had  the  custody  of  them. 

"VV.  H.  Evans  testified  that  five  or  six  days  after  the  burglary. 
Smith  exhibited  to  him  a  white-handled  pocket-knife,  which  he, 
Smith,  said  had  come  from  Wright's  store,  and  which  lie  claimed 
to  have  obtained  from  one  of  the  parties  implicated  in  the  bur- 
glary; that  Smith  claimed  that  he  exhibited  this  knife  to  show 
that  he  had  found  out  and  knew  all  about  the  burglary,  because 
of  a  previous  promise  to  Evans  to  try  and  find  out  about  it. 

Thomas  J.  Statt,  who  was  present  when  the  knife  was  xhib- 
ited,  substantially  corroborated  Evans. 

There  was  also  evidence  tending  to  show  that,  in  the  mean 
time.  Smith  claimed  to  other  persons  to  be  in  communication 
with,  or  to  have  some  knowledge  of,  the  persons  who  committed 
the  burglary,  and  that  he  was  seen,  the  Sunday  following  the 
burglary,  with  Sterne,  at  the  barn  where  a  portion  of  the  goods 
were  concealed. 

Two  witnesses  testified  to  having  played  cards  all  night  with 
Smith,  at  a  place  some  distance  away  from  the  scene  of  the  bur- 
glary, and  to  other  circumstances  tending  to  establish  an  alibi  on 
the  part  of  Smith.  Another  witness  testified  to  some  admissions 
of  Sterne  while  in  jail,  confiicting  with  his  statements  while  on 
the  witness  stand,  implicating  Smith  with  th  ;  burglary. 

Four  or  five  witnesses  also  testified  to  the  bad  character  of 
Sterne  for  truth. 

At  the  proper  time  the  court  gave  to  the  jury  several  instruc- 
tions in  writing.  In  instruction  known  as  number  four,  the 
court,  in  substance,  said  that  it  is  charged  that  the  defendant 
broke  and  entered  the  store  house,  with  the  felonious  intent  to 
steal,  take  and  carry  away  the  goods  and  chattels  of  Theophilus 
Wriirht.  If  you  find  that  the  defendant  broke  and  entered  the 
etore-housc,  and  are  satisfied  from  the  evidence,  beyond  a  reason- 
able doubt,  that  tlie  defendant  did  feloniously  steal,  take  and 
carry  nway  the  personal  g(iod8  of  said  Wright  from  said  store- 
house, at  the  time  the  same  was  broken  and  entered,  then  the 


mi  I 


!1 


.L 


mwm 


•a  1 


I 


}74 


AMEinCAN  CRIMINAL  RKPOHTS. 


jury  would  have  the  right  to  presume  that  it  was  his  iiitcntiijii  t«» 
steal  sueh  goods  when  he  broke  and  entered  the  store-In mso." 

By  instruction  known  as  number  seven,  the  court  further  said 
to  the  jury :  "If  you  should  believe  it  to  be  true  tliat  the  <;(»o(],s 
mentioned,  or  some  portion  of  them,  were  stolen  from  Theu- 
philiis  Wright,  about  the  time  charged  in  the  indietmeiit.  and 
that,  shortly  after  that  time  they,  or  some  portion  of  theui,  were 
found  in  the  exclusive  possession  of  the  defendant,  sueh  p(»s.«t's- 
sion  imposes  upon  the  defendant  the  <luty  and  burden  t>f  explain- 
ing his  possession;  and  if  he  has  failed  to  satisfactorily  acconiif 
as  to  how  he  came  by  the  stolen  property,  or  has  given  a  i'Ah{> 
account  of  how  he  came  into  possession  of  such  stolen  property, 
the  law  presumes  that  the  defendant  stole  such  property,  and 
this  presumption  may  be  strong  enough  to  justify  you  in  findinj,' 
the  defendant  guilty  of  larceny." 

Although  the  appellant  was  convicted  of  the  burglary,  and 
not  of  the  larceny  charged  in  the  indictment,  yet  the  course  of 
the  trial,  including  the  instructions  given  by  tlie  court,  made  tlic 
question,  as  to  whether  the  defendant  had  been  guilty  of  larceny 
in  connection  with  the  burglary,  a  material  one. 

The  appellant  has  devoted  the  greater  portion  of  his  brief  to 
an  argument  to  show  that  the  court  erred  in  giving  instruction 
number  seven,  as  above  quoted.  While  the  doctrine  of  this 
instruction  may  seem  to  be  in  substantial  accord  with  some  of 
the  authorities  which  have  fallen  under  our  observation,  we  are 
of  the  opinion  that  it  laid  down  a  harslier  rule  than  can  be  sup- 
ported by  the  weight  of  modern  authority. 

In  3  Greenleaf  Evidence,  sec.  31,  it  is  said  :  "We  have  liere- 
tofore  adverted  to  the  possession  of  the  instruments,  or  of  the 
fruits  of  a  crime,  as  affording  ground  to  presume  the  guilt  of 
the  possessor ;  but,  on  this  subject,  no  certjiin  rule  can  be  laid 
down  of  universal  application,  the  presujnpfion  being  not  concdu- 
sive,  but  disputable,  and,  therefore,  to  be  dealt  with  by  the  jury 
alone,  as  a  mere  inferencre  of  fact.  Its  force  and  value  will 
depend  on  several  considerations.  In  the  first  place,  if  the  fact 
<»f  poE  .ession  stands  alone,  wholly  unconnected  with  any  other 
eircumfe>,ance8,  its  value  or  persuasive  power  is  very  slight,  for  the 
real  criminal  may  have  artfully  placed  tlnj  article  in  tlie  ])o8ses- 
sion  or  upon  the  premises  of  an  innocent  person,  the  better  ti> 
conceal  his  own  guilt.  *  *  *  It  will  be  necessary, 
therefore,    for    the    prosecutor    to    add    tiie    proof    (»f    other 


ill 


U:t 


SMITH  V.  STATE. 


375 


it»'nti<)ii  to 

oust'." 
•I'tllLT  Slid 

tlie  ^'oods 

OIll     TllL'd- 

"lent,  and 
loui,  were 

>f  explaiii- 
,y  account 
!i>  a  faUo 
property, 
pert.v,  and 
in  fiiidini: 

?lary,  and 
course  of 
made  till; 

of  larceny 

8  brief  to 
iistruction 
le  of  this 
li  8oine  of 
on,  we  are 
an  be  Bup- 

liavc  liero- 
or  of  flic 
!  ^'uilt  of 
n  be  laid 
ot  con(du- 
tlio  jury 
mlue  will 
f  tlin  fact 
my  oflicr 
it,  for  till' 
lie  posKcs- 
better  to 
U'cesHai'v. 
of    otlicr 


circumstances    indicative    of    guilt,-  in    order    to    render    tlie 
naked  possession  of  tlie  thing  available  towards  a  conviction :  " 
2  Russ.  Crimes,  p.  337;  Curtis  v.  The  State,  6  Cold.,  9;   The 
State  V.  Brady,  27  Iowa,  126  ;  The  State  v.  Crewn,  38  Mo.,  372  ; 
The  State  v.  Merrick,  19  Maine.  398 ;  The  State  v.  Floyd,  15 
Mo.,  349 ;  Smaltery  v.  The  State,  46  Ind.,  447 ;  TiirheviUe  v. 
The  State,  42  Ind.,  490.     In  a  prosecution  for  larceny,  tlie  fact 
that  the  stolen  property  is  found  upon  the  person  of  the  defend- 
ant can  always  be  given  in  evidence  against  hira,  but  the  strength 
of  the  presumption  which  it  raises  against  the  accused  depends 
upo!i  all  tlie  circumstances  surrounding  the  case :     Engleman  v. 
The  State,  2  Ind.,  91.     In  the  case  of  The  State  v.  /lodge,  50 
N.  H.,  510,  a  leading  and  well  considered  case,  the  Supreme 
Court  of  New  Hampshire  decided  that  the  presumption  thus 
raised  was  one  of  fact,  and  not  of  law ;  that  there  is  no  legal  rule 
on  the  subject ;  that  much  depends  on  the  nature  of  the  property 
stolen,  and  the  circumstances  of  each  particular  case ;  that  "  it  is 
a  presumption  established  by  no  legal  rule,  ascertained  by  no 
legal  test,  defined  by  no  legal  terms,  measured  by  no  legal  stand- 
ard, bounded  by  no  legal  limits.     It  has  none  of  the  character- 
istics of  law.     Whether  it  be  found  by  the  judge  or  the  jury,  the 
judge  and  the  jury  must  be  equally  unconscious  of  finding  in  it 
any  semblance  of  a  legal  principle,  howe>er  much  good  sense 
may  appear  in  the  result  arrived  at.     l^eiug  a  presumption  of 
fact,  it  should,  according  to  our  practice,  be  drawn  by  the  jury, 
and  not  by  the  court."     We  regard  tliis  case  as  well  supported 
by  authority,  and  we  feel  it  our  duty  to  apply  the  doctrines 
enunciated  by  it  to  the  case  at  the  bar. 

We  think  the  court  erred  in  saying  to  the  jury,  as  it  did  in 
substance,  that,  in  the  absence  of  a  satisfactory  o.\])lanation  of 
the  possession  of  the  stolen  property,  the  taw  preftumen  that  the 
defendant  had  stolen  it — such  a  presumption  being  an  inference 
of  fu(!t  merely,  and  not  amounting  to  a  rule  of  law. 

Evidence  in  explanation  of  such  possession  may  fall  short  of  a 
Hatisfactory  ex])Ianation,  and  yet  be  sufficient  to  acqnit.  If  it 
creates  a  reasonable  doubt,  it  practically  rebuts  the  piosumption 
of  guilt:  Clackner  v.  The  State,  33  Ind.,  412;  Way  v.  Ths 
State,  35  Ind.,  409. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new 
trial.  The  clerk  will  give  the  proper  notice  for  the  return  of 
the  prisoner. 


iilsii 


■  ■  ■''     ij; 

:•<! 

A 

'^ 

■i  s  1^ 


M^ 


376 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  Ballingall. 


(42  Iowa,  87.) 

Lbttino  fob  illeoal  purposes:    Permitting 

Under  a  statute  which  punishes  one  who  authorizei  or  permitt  premises  to  Im 
used  for  the  sale  of  intoxicating  liquors,  the  lessor  is  not  guilty  if  he 
rented  the  premises  for  a  lawful  purpose,  not  knowing  that  they  were  to 
be  used  for  the  unlawful  sale  of  intoxicating  liquors,  although  he  aftor- 
wards  knew  that  they  were  so  used,  and  took  no  steps  to  prevent  their 
continued  use  for  that  purpose. 

Miller,  Ch.  J.  The  evidence  showed  thai  the  defendant  was 
the  owner  of  the  building  known  as  the  "  Ballingall  House,"  in 
the  city  of  Ottumwa,  which  was  built  and  used  as  a  hotel.  In 
this  building  certain  rooms  were  finished  off  with  bar,  shelves, 
etc.,  and  were  used  for  saloon  and  billiard  rooms.  The  evidence 
tended  to  show  that  the  saloon  had  been  leased  by  the  defendant 
to  one  Fraunburg,  who  sold  intoxicating  liquors  therein  on  his 
own  account,  and  not  as  clerk,  servant  or  agent  of  defendant. 
The  defendant  erected  the  hotel  and  had  these  rooms  fitted  up 
in  the  manner  they  were  when  Fraunburg  opened  his  saloon. 
There  was  evidence  tending  to  show  that  the  defendant  knew  to 
what  pur])osc  the  rooms  were  to  be  put  before  he  leased  them  to 
Fraunburg,  and  that  afterwards  he  knew  how  they  were  being 
used,  and  made  no  objection  thereto,  nor  attempted  to  prevent 
the  unlawful  sale  of  intoxicating  liquors  therein.  The  instruc- 
tions given  and  refuwcd  are  numerous,  but  they  present  only  tlio 
question  whether,  under  this  indictment,  if  the  defendant  leased 
the  rooms  where  the  liquors  were  sold  contrary  to  law  by  Fraun- 
burg, for  a  lawful  ])urpose,  or  not  knowing  that  they  were  to  be 
used  for  the  unlawful  sale  of  intoxicating  licjuors,  but  afterwards 
be(^ame  acquainted  with  the  fact  that  they  were  being  so  used, 
and  took  no  steps  to  sto])  or  prevent  the  continuance  of  the 
unlawful  traffic  therein,  either  by  word  or  action,  he  may  be 
lawfully  convicted.  The  court  instructed  to  the  effect  that  lie 
could  be,  while  those  asked  by  the  defendant  and  refused  were 
to  the  effect  that  he  could  not. 

The  section  of  the  statute  (Revision,  sec.  1504,  Code,  sec.  1548) 
under  which  this  indictment  is  drawn,  provides  that  "  proof  of 
the  manufacture,  sale  or  keeping,  with  intent  to  sell,  of  any 


STATE  V.  BALLINGALL. 


877 


intoxicating  liquor  in  violation  of  the  provisions  of  this  chapter, 
in  or  upon  the  premises  described,  hij  the  party  acmtscd  or  hy 
any  other  under  the  authority  or  hy  the  permission  of  the  party 
accused,  shall  be  presunijjtive  evidence  of  the  offense  provided 
for  in  this  section.''  Under  this  provision  of  the  statute,  there 
can  be  no  doubt  that,  if  the  owner  of  a  house  lease  the  same  to 
another  for  the  purpose  of  the  unlawful  sale  of  intoxicating 
liquor  therein,  the  lessor  may  be  indicted  and  convicted.  It  is 
claimed,  however,  that  where  the  building  has  been  leased  for  a 
lawful  purpose,  and  it  is  afterwards  used  for  the  unlawful  sale  of 
intoxicating  liquors,  to  the  knowledge  of  the  owner,  he  cannot 
be  legally  convicted,  unless  he  does  some  affirmative  act  signify- 
ing his  assent  thereto  or  his  permission  for  the  continuance  of 
the  unlawful  traffic.  In  The  State  v.  Abrahams,  6  Iowa,  117, 
in  which  the  defendant  was  indicted  under  section  2712,  of  the 
Code  of  1851,  which  enacts  that  if  any  person  let  any  house, 
know  ing  that  the  lessee  intends  to  use  it  as  a  place  or  resort  for 
the  purpose  of  prostitution  and  lewdness,  or  knowingly  permit 
such  lessee  to  use  the  same  for  such  purpose,  he  shall  be  pun- 
islied,"  etc.,  it  was  held,  the  defendant  being  charged  with  know- 
ingly permitting  his  house  to  be  used  for  the  purpose  of  prosti- 
tution and  lewdness,  it  must  be  shown  that  he  did  some  act,  or 
made  some  declaration,  affirmjvtivcly  assenting  to  the  property 
being  so  used,  after  ho  had  knowledge  that  it  was  being  used  for 
such  unlawful  purpose  ;  that  mere  inactivity  on  the  defendant's 
part,  or  a  failure  on  his  part  to  take  some  steps  to  prevent 
the  illegal  use,  is  not  permitting  it  in  the  sense  contemplated 
by  tlie  statute.  The  doctrine  there  announced  covers  this 
case.  The  defendant  here  cannot  be  legally  convicted  under 
this  indictment,  unless  it  is  shown  tliat,  .after  he  became  aware  of 
the  illegal  use  of  his  house  by  the  lessee,  he  did  some  act,  or 
made  8t>me  declaration,  affirmat''vely  assenting  thereto.  It  was 
error,  therefore,  to  give  the  iiistinctions  referred  to  on  this  point, 
and  to  refuse  those  asked  by  tho  defendant 
The  judgment  must,  therefore,  be  reversed. 


%''■:*  i 


'    ! 


It 


I 


NoTK.— To  the  same  effect  is  State  v.  Stafford,  67  Me.,  135. 


N.M<Jv 


is  'h1 

. '  i 

I  i'l 

i 


3  '4 
•I   1 


•,i 


i 


378  AMERICAN  CRIMINAL  REPORTS. 


Crofi'ox  v.  State. 

(25  Ohio  St.,  249.) 

Lktttnq  ron  nj-EOAi.  pdhposes:    Knomngly  peiiriitHnfi — Indietttumt. 

Under  a  statute  puuishiug  the  owner  of  premises  for  knowingly  permitting 
them  to  be  used  or  occupied  for  the  purpose  of  prostitution,  and  confer 
ring  on  the  lessor  jjowcr  to  avoid  the  lease  and  re-enter  wiiere  the  lessee 
does  use  the  premises  for  such  purpose,  proof  tliat  the  lessee  does  use 
the  premises  for  such  purpose,  and  that  the  lessor,  having  knowledu'e 
of  the  fact,  takes  no  steps  to  avoid  the  lease,  will  not  justify  his  coiivic- 
tiop  under  the  statute,  in  a  case  where  the  evidence  sliows  that  the  lesscir 
originally  leased  the  premises  without  any  knowledge  or  intent  that  they 
would  be  unlawfully  used  by  the  lessee. 

Under  such  a  statute,  it  is  not  necessary  that  the  indictment  should  specifi- 
cally aver  that  the  premises  were,  in  fact,  used  for  purposes  of  probti- 
tution. 

McIt.VAiNE,  C.  J.  There  was  no  error  in  overruling  the 
•lemurrer.  The  only  objection  made  to  the  sufficiency  of  tlie 
indictment  is,  that  it  does  not  contain  an  averment  that  the  house 
was,  in  fact,  used  and  occupied  for  the  purpose  of  prostitution. 
Tt  is  not  claimed  that,  under  this  statute,  an  averment  that  pro>- 
titution  was  in  fact  practiced  in  the  house,  is  essential.  The 
point  made  is  that  the  indictment  should  show  that  the  house 
was,  in  fact,  used  for  that  purpose.  The  distinction  between 
such  averments  and  certainty,  to  a  certain  intent  in  particular, 
and  certainty  to  a  certain  intent  in  general — the  latter  degree  of 
(certainty  being  all  that  is  required  in  criminal  pleadings,  and  we 
think  it  is  found  in  this  indictment.  There  is  no  substantial 
tlilTerence  between  an  averment,  that  A  permitted  B  to  use  and 
occupy  a  house  for  a  certain  purpose,  and  the  averment  that  A 
permitted  the  house  to  be  used  and  occupied  by  B  for  such  pur- 
pose. The  indictment  in  this  case  describes  the  offense  substan- 
tially ae  it  is  described  in  the  statute,  with  the  further  averment 
that  the  accused,  unlawfully  and  knowingly,  permitted  Mitchell 
to  keep  in  said  house  certain  females  for  the  purpose  of  prosti- 
tution, with  intent  that  such  females  should  therein  have  illicit 
carnal  intercourse  with  men. 

The  unlawful  use  of  the  house  by  Mitchell,  with  the  knowl- 
edge and  permission  of  the  accused,  is  sufficiently  averred  in  the 
indictment. 


CUOFTON  V.  STATE. 


379 


Upon  the  whole  record,  however,  we  think  the  dof  ndant 
below  was  improperly  convicted. 

This  statute  seeks  to  prevent  the  evil  of  prostitntion  by  sup- 
pressing houses  of  ill-fame.  All  houses  or  buildings  used  or 
occupied  for  such  purposes  are  declared  to  be  public  nuisances. 
It  also  punishes  the  owner  or  person  having  the  control  of  such 
places,  in  each  of  the  following  cases  : 

1.  For  knowingly  leasing  or  subletting  the  same  for  such  pur- 
pose. 2.  J^or  knowingly  permitting  the  same  to  be  used  or 
occupied  for  such  purpose.  3.  For  using  or  occupying  them  for 
that  purpose. 

The  defendant  was  indicted  for  the  second  offense  above 
named.  The  testimony  showed  that  he  was  the  owner  of  the 
house,  and  had  leased  it  to  Mitchell  for  a  terra  without  any 
knowledge  or  intent  that  it  would  be  unlawfully  used  by  the 
lessee.  By  his  contract,  he  parted  with  all  control  over  it  for 
the  term. 

It  is  true,  the  lessee,  during  the  term,  used  it  in  violation  of 
the  statute,  but  there  is  no  pretense  that  the  defendant  assented, 
in  fact,  to  such  use.  Indeed,  the  proof  is  to  the  contrary,  except 
only  in  the  fact,  that  he  refused  to  avoid  the  lease  and  re-enter, 
upon  being  informed  that  the  property  was  being  used  in  viola- 
tion of  the  statute. 

The  whole  case,  therefore  resolves  itself  into  this  single  ques- 
tion :  Was  such  refusal  to  avoid  the  lease  and  re-enter  into  the 
possession,  an  indictable  offense  under  the  statute  ? 

The  court  below  told  the  jury  that  "  such  refusal  would  amount 
to  an  acquiescence  in  the  keeping  such  a  house  "  (that  is,  as  we 
understand  it,  sufficient  proof  of  the  offense  charged),  unless  the 
defendant  took  other  steps  "to  induce  Mrs.  Mitchell  either  to 
move  or  absfain  from  such  use  of  the  premises." 

The  qualification  annexed  to  this  instruction  is  of  no  signifi- 
cance. The  defendant  was  under  no  legal  obligation  to  induce 
Mitchell  to  remove,  or  to  abstain  from  the  illegal  use  of  the 
premises.  That  it  was  his  moral  duty  to  do  so,  may  be  admitted, 
but  the  omission  on  his  part  to  take  steps  to  that  end,  was  no 
offense  under  the  statute.  Section  2  of  the  act  confers  on  the 
lessor  of  property  the  power  to  avoid  his  contract  of  lease  for 
cause  named  ;  but  it  does  not  make  the  omission  to  exercise  the 
power  an  indictable  ofiEense.  Nor  is  the  offense,  as  declared  by 
the  first  section,  where  the  owner  or  person  having  the  control  of 


;) 


(  -; 


1h 


• 


li 


m 


380 


AMERICAN  CRIMINAL  REPORTS. 


property,  knowingly  permits  it  to  be  nsed  for  the  purpose  of 
prostitution,  sustained  simply  by  proving  that  the  lessor  refused 
to  avoid  a  lease  innocently  made,  on  the  ground  named  in  the 
second  section. 

Judgment  reversed. 

Welch,  Whitb,  Bex  and  Gilmore,  JJ.,  concurred. 


■  w 


»     'ft 


State  v.  Pearsall. 

(43  Iowa,  630.) 

House  of  ill-fame:    Evidence. 

In  order  to  render  the  defendant  guilty  of  keeping  a  hotise  of  ill-fame,  it  must 
appear  that  he  has  some  inten-st  in  it  as  such,  or  tliat  he  participiilis,  or 
is  authorized  to  participate  in  some  way  in  its  management.  Proof  timt 
he  is  the  owner  and  lessor  of  the  house,  and  that  he  is  frequently  there, 
and  stays  there  Sundays,  is  not  sufficient. 

Adams,  J.  The  court  instructed  the  jtiry  as  follows :  "  Proof 
that  the  defendant  acted  as  keeper  of  the  house,  or  so  held  him- 
self out  to  the  world,  is  sufKcient.  You  are  to  take  into  consid- 
eration all  the  circumstances.  In  the  absence  of  proof  to  the 
contrary,  the  persons  in  possession  of  the  premises,  and  occuiiy- 
ing  the  same,  are  presumed  to  have  control  of  them,  and  a  con- 
tinual use  of  the  same,  for  a  considerable  time,  as  a  house  of  pros- 
titution, would  justify  the  jury  in  finding  that  the  dcfeiuhint,  if 
living  in  the  house,  was  consenting  to,  and  a  party  to  the  u.se  of 
it,  for  that  purpose,  although  the  evidence  did  not  show  he  actu- 
ally received  any  money  on  account  of  such  nse." 

To  the  giving  of  this  instruction  the  defendant  excei)tcd,  and 
now  assigns  the  same  as  error. 

The  evidence  shows  that  the  house  in  cpiestion  was  a  huiise  of 
ill-fame,  owned  by  the  defendant  Pearsall.  But  it  was  rented 
and  kept  by  one  Mrs.  Ilufe.  Whether  it  was  kept  also  by  the 
defendant  is  the  question  in  the  case.  The  instruction  i.^ 
objected  to  upon  the  ground  that  there  was  no  evidence  to 
justify  it. 

One  of  the  witnesses  says :  "  Pearsall  hius  made  his  home  there  ; 
have  seen  him  carrying  provisions  there."  Another  witness, 
who  is  aa  inmate  of  the  house,  says :     "Mr.   Pearsall  goes  to 


m 


wm 


CLAY  c.  PEOPLE. 


381 


Mrs.  Rufe's  frequently  ;  he  stays  all  night  there  once  in  a  while ; 
he  generally  eats  there  on  Suni.liys ;  I  don't  know  bnt  ho  has 
come  there  on  Saturday  and  stayed  until  Monday  morning; 
he  sometimes  conies  up  there  avA  eats  dinner;  sometimes  ho 
2008  in  the  pantry  and  eats."  Another  witness  says :  "  I  saw 
Pearsall  building  the  house ;  I  have  seen  Pearsall  around  there 
frequently;  I  think  I  saw  him  once  fixing  up  the  fence,  and 
have  soon  him  lots  of  timee  doing  notliing." 

Taking  the  evidence  altogether,  we  think  it  shows  that  the 
house  is  not  Pearsall's  usual  home,  but  that  he  is  often  there 
looking  after  his  premises,  and  may  be  said  to  live  there  on  Sun- 
days. We  think  the  evidence  would  justify  the  jury  in  so 
l)elieving.  Assuming,  then,  that  the  defendant  owns  the  house 
and  lives  in  it  a  part  of  the  time,  would  that  constitute  him  joint 
keeper  of  the  house  with  Mre.  Rufe,  there  being  no  evidence 
that  he  was  not  there  as  a  boarder  ?  We  are  of  the  opinion  that 
it  would  not.  The  most  which  the  evidence  establishes  is  that 
defendant  is  lessor  of  the  house,  and  knowingly  permits  it  to  be 
used  as  a  house  of  ill-fame.  This  constitutes  a  distinct  offense, 
and  must  not  be  confounded  with  that  of  which  the  defendant  is 
convicted.  He  who  keeps  a  house  of  ill-fame  has  some  interest 
in  it  as  such,  or  participates,  or  is  authorized  to  participate,  in 
some  way  in  its  management.  In  this  there  is  no  evidence  of 
either.  His  rent  was  neither  greater  nor  less,  according  to  the 
patronage  which  the  house  received,  nor  did  he  furnish  or  dis- 
charge inmates,  or  have  authority  to  furnish  or  discharge  them, 
or  to  control  the  house  in  any  respect,  so  far  as  the  record  shows. 

Reversed. 


fi  • 


tii 


Clay  v.  The  People. 

(86  III,  147.) 

Libel:    Indictment— Objection  not  made  in  trial  court- 
ing a  libel  to  be  publislied 


-Liability  of  one  procur- 


An  indictment  for  libel  which  charges  tliat  the  libel  is  "as  follows,"  and  then 
sets  it  forth  verbatim,  with  sufficient  innuendoes,  alleges  the  libel  with  suf- 
ficient certainty. 

An  objection  made  in  the  Supreme  Court  that  the  libel  proven  is  variant  from 
that  set  forth  in  the  indictment,  will  not  be  considered  where  no  such 
objection  is  made  in  the  cuun  below. 


^m 


n  -, ! 


mi 


382 


AMERICAN  CRIMINAL  REPORTS. 


J'i'  ^' 

En 
h  • 


I 
i 

It  -  -* . 
I''t 


One  who  ninkaf^  to  a  newspaper  writer  the  statements  of  fact  on  wliirh  :i 
libol  is  bused,  and.  after  the  article  is  in  type,  hears  the  proofs  reud  and 
allirras  its  truth  and  assents  to  its  publication,  is  as  guilty  of  libel  u 
though  he  had  written  and  published  the  article  himself. 

Writ  of  error  to  the  circuit  court  of  Livingston  county ;  the 
Hon.  N,  J.  PiLLSBURY,  Judge,  presiding. 

This  was  an  indictment  against  Cassius  M.  Clay  for  a  libel. 
The  indictment,  omitting  formal  parts,  was  as  follows :  "  Tliat 
Cassius  M.  Clay  *  *  unlawfully  and  maliciously  contriving 
and  intending  to  vilify  and  defame  one  Amanda  Masters  and 
Etta  Masters,  and  to  bring  them  into  public  scandal  and  di»wra(!c, 
and  to  injure  and  aggrieve  them,  the  said  Amanda  Masters  and 
Etta  Masters,  unlawfully,  maliciously  and  willfully  did  c(»jii])08e 
and  publish,  or  cause  and  procure  to  be  composed  and  publis^lied, 
a  certain  false,  scandalous,  and  malicious  and  defamatory  libel  of 
and  concerning  them,  the  sud  Amanda  Masters  and  Etta  Masters, 
and  caused  and  procured  the  said  false  and  scandalous,  malicious 
and  defamatory  libel  to  be  printed  in  a  certain  newspaper,  called 
the  Strcator  Pioneer,  in  the  town  of  Streator,  in  La  8alle  county, 
state  aforesaid,  with  intent  to  circulate  and  publish,  and  after- 
wards did  circulate  and  publish,  the  said  false,  malicious  and 
defamatory  libel  of  and  concerning  the  said  Amanda  Masters 
and  Etta  Masters,  so  printed  as  aforesaid  in  said  county  of  Liv- 
ingston, which  false,  scandalous,  malicious  and  defamatory  libel 
of  and  concerning  the  said  Amanda  Masters  and  Etta  Masters. 
80  printed,  circulated  and  published  in  said  county  of  Livinu>toii. 
is  as  follows :  '  Brutality.  Two  young  women  maltreat  their 
mother.  A  matter  which,  for  brutality,  is  nearly  equal  to  any- 
thing which  has  tjiken  place  in  this  vicinity  for  some  time. 
occurred  about  seven  miles  southeast  of  this  village  (meaning  the 
village  of  Strcator)  recently.  The  actors  in  this  drama  of  roul 
life  are  named  Masters  (meaning  the  said  Amanda  Masters  and 
Etta  Masters),  and  we  presume  are  known  to  some  of  our  citizens. 
The  father  (meaning  the  father  of  the  said  Amanda  Masters  and 
Etta  Masters)  was  called  away  from  home  on  business,  leaving 
with  his  wife  (meaning  the  mothor  of  the  said  Amanda  Masters 
and  Etta  Masters)  one  hundred  dollars  to  procure  the  necessaries 
of  life  during  his  absence.  They  (meaning  the  father  and  the 
mother  of  the  said  Amanda  Masters  and  Etta  Masters)  have  two 
daughters,  Amanda  and  Etta  Masters  (meaning  the  said  Amanda 
Masters  and  Etta  Masters)  aged  eighteen  and  twenty,  who  now 


iiflNljt 


CliAY  e.  PEOPLE. 


383 


on  whicli  ii 
'fs  read  and 
7  of  libel  u 


unty;  the 

or  a  libel. 
"  Ti.at 
contriving 
asters  and 
disgrace, 
asters  and 
1  compose 
publisiied, 
ry  libel  of 
;a  Masters, 
malicious 
per,  called 
lie  county, 
and  after- 
cions  and 
a  Masters 
ty  of  Liv- 
iitory  libel 
a  Masters, 
livinijston, 
reat  their 
lal  to  any- 
one time, 
janinfi;  the 
na  of  real 
asters  and 
r  citizens, 
asters  and 
18,  leavinpf 
!a  Masters 
lecessaries 
r  and  the 
liave  two 
I  Amanda 
who  now 


eaw  an  (»p])ortimity  to  brace  up  and  pnt  on  a  little  style,  and  in 
order  to  further  their  (meaning  the  said  Amanda  Masters  and 
Etta  Masters)  scheme,  demanded  the  money  of  their  mother 
(meaning  the  mother  of  said  Amanda  Masters  and  Etta  Mas- 
ters), who  refused  to  give  it  (meaning  the  money)  up,  and  tlie 
two  daughters  (meaning  the  said  Amanda  and  Etta  Masters.) 
attacked  (meaning  the  said  Amanda  Masters  and  Etta  Masters 
assaulted  their  mother  with  intent  to  rob  her)  their  aged  mother 
(meaning  the  mother  of  the  said  Amanda  Masters  and  Etta  Mas- 
ters), beating  her  (meaning  the  said  Amanda  Masters  and  Etta 
Masters  assaulted  their  mother  with  intent  to  rob  her),  and  at 
last  knocked  her  down  behind  the  stove  (meaning  thereby  the 
said  Amanda  Masters  and  Etta  Masters  knocked  down  their 
mother  with  intent  to  rob  her),  where  she  lay  insensible  for  some 
time.  At  last  Mrs.  Masters  came  to  herself,  when  the  recollec- 
tion of  the  brutal  treatment  she  had  received  at  the  hands  of 
those  who,  above  all  others,  should  have  loved  and  cherished  her 
and  done  their  utmost  to  render  her  last  days  pleasant  and  joy- 
ous, smoothing  out  the  wrinkles  of  care  and  sorrow,  nearly  drove 
her  wild  (meaning  thereby  that  the  brutal  treatment  of  the  said 
Amanda  Masters  and  Etta  Masters  nearly  drove  their  mother 
crazy),  and  she  (meaning  the  mother  of  the  said  Amanda  Masters 
and  Etta  Masters)  proceeded  to  the  barn  to  hang  herself.  The 
daughters  (meaning  the  said  Amanda  Masters  and  Etta  Masters) 
were  entirely  indifferent  (meaning  to  charge  the  said  Amanda 
Masters  and  Etta  Masters  with  being  indifferent  and  not  caring 
if  their  said  mother  committed  the  act  of  suicide).  But  an 
adopted  boy,  who  is  living  with  the  family,  ran  and  informed 
the  son  of  Mrs.  Masters,  who  arrived  just  in  time  to  prevent  his 
mother  from  carrying  her  intention  into  execution  (meaning  that 
a  brother  of  the  said  Amanda  Masters  and  Etta  Masters  pre- 
vented their  mother  from  committing  suicide).  After  he  had 
departed,  the  daughters  (meaning  the  said  Amanda  Masters  and 
Etta  Masters)  made  another  attempt  to  assault  their  (meaning  the 
said  Amanda  and  Etta  Masters)  mother,  but  were  prevented 
by  an  older  married  sister  (meaning  a  sister  of  the  said  Amanda 
and  Etta  Masters),  who  informed  them  (meaning  the  said 
Amanda  Masters  and  Etta  Masters)  that  she  would  protect  hei" 
mother,  and  thus  the  matter  rests.  If  any  of  our  Streator 
old  bachelors  want  a  wife  who  will  make  it  lively  for  them,  let 
them  make  a  trip  out  to  Masters'  (meaning  the  home  of  the  said 


'4 


I*. 

* 

t'> 

I   1 

it 


'';  >    i 


384 


AMERICAN  CRIMINAL  REPORTS. 


Amanda  Masters  and  Etta  Masters),  and  secure  one  of  tlicRe 
amiable  creatures  (meaning  either  of  the  said  Amanda  Masters 
or  Etta  Masters),  and  in  about  a  year  he  will  fetch  up  in  tlie 
insane  asylum  with  less  hair  on  his  head  than  is  worn  by  the 
editor  of  the  PioncerJ     Contrary,"  etc. 

Mr.  U.  W.  Ryon,  for  the  plaintiff  in  error. 

3£r.  J.  K.  Edsall,  Attorney-General,  for  the  people. 

"Walkkr,  J.  The  plaintiff  in  error  was  indicted  and  convicted 
of  libel  in  the  La  Salle  circuit  court.  He  was  fined  $800  and 
costs,  and  it  was  ordered  that  he  stand  committed  until  the  same 
should  be  paid.  He  brings  the  record  to  this  court,  and  asks  a 
reversal  on  several  grounds. 

It  is  first  urged  that  the  libel  is  not  set  out  with  sufficient  cer- 
tainty, and  the  indictment  should,  for  that  reason,  have  been 
quashed  on  the  motion  iTiterposed  for  that  pur])<)se.  Tliis  libel 
is  introduced  into  the  indictment  by  the  words,  "as  follows." 
This  is  t^utticiently  certain — as  much  so  as  had  the  langria^j^o,  "  in 
the  words  and  figures  as  follows;,"  been  employed.  We  regard 
the  indictment,  under  our  statute,  which  only  rc<juire8  it  to  lie  so 
plainly  stated  that  the  offense  charged  may  be  easily  uiidcrstood 
by  the  jury,  as  good  in  substance  and  form.  This  iiidictinent 
answers  all  of  these  requirements  of  the  statute,  and  tlu'  court 
did  not  err  in  overruling  the  motion  to  quash. 

It  is  claimed  that  tiie  libel  read  in  evidence  was  variant  from 
that  set  out  in  the  indictment.  We  have  tiiriUMl  to  the  tran- 
script, and  fail  to  find  that  any  objection  was  made  to  the  intro- 
duction of  the  article  in  evidence  because  of  a  variance,  or  for 
anv  other  reason.  And  even  if  there  are  variances,  the  ohiec- 
tion  should  have  been  made  when  it  was  offered,  and,  on  liciti;^ 
overruled  an  exception  sliould  have  been  ]>r('served.  Uiit,  fail- 
ing to  do  so,  it  can  not  be  raised,  for  the  first  time,  in  this  conrt. 

It  is  also  insisted  that  ))laintiff  in  error  did  not  write  or  publish 
the  article,  and  is,  therefore,  wrongfully  convicteil.  It  is  a 
familiar  maxim,  that  what  a  person  d(»es  by  another  he  docs  by 
himself;  and,  we  thiid<,  it  a])plies  iti  its  full  force  in  this  casJC. 
He  voluntarily  gave  the  main  statements  in  the  article  to  one  of 
the  persons  connected  with  the  publicatii»n  of  the  pajter,  who, 
after  writing  part  of  an  article  embodying  the  facts  thus  given 
him,  communicated  them  to  the  editor  of  the  pai)er,  who  there- 
upon wrote  and  i)ublislied  the  article  read  in  evidence.     Alter  it 


K*i 


RICKAllT  V.  PEOPLE. 


385 


was  in  type,  the  article  was  read  to  plaintiff  in  error  from  the 
proof  sheet.  He  suggested  a  correction  as  to  the  course  the 
family  referred  to  resided  from  Streater,  said  it  was  a  little 
rough,  but  it  was  true,  and  let  it  go.  That  he,  in  substance,  so 
said  to  Gale  and  Babcock,  we  think  so  abundantly  proved  as  to 
require  the  jury  so  to  find.  He  knew  it  was  in  type  for  the 
purpose  of  being  published  in  the  paper.  He  must  have  known 
it  was  read  to  him  to  get  his  indorsement  of  the  truth  of  the 
statements  it  contained.  He  made  no  protest  or  objection  to  its 
publication,  but,  on  the  contrary,  he  said,  "let  it  go,"  and  it 
was  published  as  he  thus  directed.  We  may  reasonably  infer 
that  had  he  previously,  or  even  at  that  time,  directed  the  editor 
not  to  publish  the  article,  as  it  might  not  be  true,  and,  if  not, 
that  it  would  inflict  a  grievous  wrong  on  innocent  people,  it 
would  never  have  appeared.  On  the  contrary,  he  volunteered 
the  statements  on  which  the  article  is  based ;  hears  it  read  after 
it  is  written  and  i'  i  type ;  hearing  it  read,  he  says,  "  let  it  go," 
and  it  was  published  aa  thus  directed. 

Although  the  editor  may  be  equally  liable,  that  does  not  exon- 
erate plaintiff  in  error.  He  took  an  active  part  in  its  production 
and  publication,  and  is,  essentially,  one  of  its  authors  and  pub- 
lishers, and,  as  such,  must  be  responsible  for  the  injury  he  has 
inflicted  on  society  by  his  reckless,  if  not  wanton  and  malicious, 
conduct  in  this  matter.  It  would  have  required  but  little  effort 
to  have  learned  whether  the  rumor,  as  he  calls  it,  was  true ;  but 
he  does  not  pretend  to  have  made  any  effort.  He  himself 
admitted  that  it  was  rough,  but  that  did  not  restrain  his  action. 
We  have  no  doubt  of  the  sufliciency  of  the  evidence  to  sustain 
the  verdict,  and,  perceiving  no  error  in  the  record,  the  judgment 
of  the  court  below  is  affirmed. 

Judgment  affirmed. 


I  '■: 


;i  ■ 


I 

i 

^  il 

i 
■-    r 

!      -t        ■ 

, 

nflm 

1   '  'Il 


BlOKART   V.    PkOPLB. 
(79  III,  85.) 


Ltquob  sblmnq:    Evwtum  of  liquor  law  —  Jurisdiction  ofjuftieei. 

Justices  of  the  pence  have  jurisdiction  of  actions  to  recover  the  penalty  for 
nn  unlawful  sale  of  liquor,  imposed  by  w;c.  13  of  chap.  43,  R.  S.  1874. 

The  proviHions  of  the  liquor  law,  prohibiting  the  sale  of  liquor  witiiout  a 
license,  cauuot  be  evaded  by  a  saluou  keeper's  cu.stomcrs  orguui/.iug  a 
Vor,.  11.-25 


I  . 


886  AMERICAN  CRIMINAL  REPORTS. 

sbam  association,  pretending  to  buy  him  out  and  electing  him  treasurer, 
and  tlien  letting  him  carry  on  liis  business  witli  the  members  precisely  as 
he  did  before,  with  the  single  exception  that  the  so-called  members, 
instead  of  paying  cash  for  their  drinks,  purchase  tickets  at  a  dollar  a 
piece,  which  arc  good  for  a  dollar's  worth  of  drinks,  which  tickets  are 
punclied  for  each  drink  had  on  them  until  the  ticket  is  exhausted.  The 
saloon-keeper,  not  having  a  license,  is  properly  convicted  under  the  law. 

Scott,  Ch.  J.  This  action  was  commenced  before  a  justice  of 
the  peace,  on  complaint  under  oath,  to  recover  the  fine  imposed 
for  a  violation  of  the  second  section  of  the  act  entitled  "  Dram 
Shops,"  to  provide  for  licensing  of  and  against  the  evils  arising 
from  the  sale  of  intoxicating  liquors.  That  section  makes  it 
unlawful  for  any  person  not  having  a  license  to  keep  a  drain 
shop,  either  by  himself  or  another,  to  sell  into.xicating  licpioi's  of 
any  kind  in  a  less  quantity  than  one  gallon,  or  in  any  (piaiititj, 
to  be  drank  on  the  premises,  or  in  any  adjacent  room  or  place, 
and  subjects  the  offender  to  a  fine  and  imjjrisonment :  II.  S. 
1874,  chap.  43,  sec.  2. 

The  twelfth  section  provides  that  any  fine  or  imprisonment 
mentioned  in  the  act  nuiy  be  enforced  by  indictment  in  any 
court  of  record  having  criminal  jurisdiction,  or  the  fine  may  be 
sued  for  and  recovered  before  any  justice  of  the  peace  of  the 
pr(»j)er  county,  in  the  name  of  the  people  of  the  state  «»f  Illinois. 
Uniler  this  clause  of  the  statute  the  justice  of  the  peace  had 
jurisdiction  to  try  the  cause,  and  wc  are  not  aware  of  any  pro- 
vision of  the  constitution  it  contravenes :  2[cCutchemi  v.  T/w 
People,  09  111.,  (501. 

Of  the  ([uestions  raised  only  one  need  be  considered,  and  that 
has  relation  to  the  guilt  of  the  defendant.  The  statute  makes 
the  giving  away  of  intoxicating  licjuors,  or  other  shift  or  device 
to  evade  its  provisions,  uidawful  selling.  That  defendant  resorted 
to  a  shift  or  device  to  evade  the  provisions  (»f  the  law  again.'it 
selling  into.xicating  liquors,  we  entertain  iu)t  the  slightest  <li>iiht. 
TliiTc  is  no  pretense  defeiulant  had  a  license  to  sell  into.xicating 
li<pittrs,  and  hence  it  follows,  if  he  nuide  any  sales  in  a  less  (juan- 
lity  than  one  gallon,  or  in  any  quantity,  to  be  draid<  on  tiie 
premises,  or  in  any  adjacent  room  or  place,  such  sales  must  have 
been  unlawful. 

I'rior  to  the  first  day  of  .July,  1S74,  defeiulant  had  a  bar  in  a 
room  in  the  "Piatt  House,"  where  he  kept  for  sale  the  usu;il 
stock  of  li(piors,  having  a  license  to  kec])  a  dram  shop.  Ahout 
that  date  there  was  organisccd  what  is  called   the    ''Wheatoii 


hn, 


„■.';  "M 


RICKART  V.  PEOPLE. 


387 


Copartnership  Company  No.  One."  The  object  of  the  com- 
pany, as  set  forth  in  the  articles  of  association,  was  "  to  promote 
temperance,  friendship  and  good  feeling  in  the  community  at 
large.  Any  white  male  citizen,  above  the  age  of  twenty-one 
years,  of  steady,  industrious  habits,  sound  mind  and  memory, 
and  good  moral  character,"  could  become  a  member  of  the  asso- 
ciation on  complying  with  certain  conditions. 

The  association,  or  company,  had  as  officers  a  president,  vice- 
president,  secretary  and  treasurer,  whose  duties  were  all  defined. 
The  capital  stock  of  the  company  was  to  be  $300,  and  was  to  be 
invested  in  business,  but  what  that  business  was,  or  its  character, 
is  not  declared,  either  in  the  articles  of  association  or  in  the 
by-laws.  One  of  the  by-laws  provides,  "no  partner  shall  give 
any  goods  of  the  company  to  a  minor,  unless  8u«.h  minor  is  a 
member  of  his  family;"  and,  another,  tliat  "no  partner  shall 
sell  any  of  the  firm  goods  to  any  person  or  persons  whatever, 
either  directly  or  indirectly."  At  the  time  this  prosecution  was 
commenced,  the  proof  shows  the  association  consisted  of  about 
150  members.  Notwithstanding,  it  is  declared  the  object  of  the 
association  is  the  promotion  of  "temperance,  friendship  and 
good  feeling  in  the  community  at  large,"  among  its  first  acts,  the 
company  rented  the  room  defendant  had  formerly  occupied,  pur- 
chased of  him  the  remaining  stock  of  liquors  he  had  on  hand, 
and  set  up  and  opened  a  isaloon,  without  having  first  obtained  a 
license  to  keep  a  drum  shop,  and  all  under  the  management  of 
defendant,  with  the  specious  title  of  "  treasurer." 

Bender,  the  secretary  of  the  alleged  company,  was  examined 
as  a  witness  on  the  part  of  the  prosecution,  and  gave  a  descrip- 
tion of  the  place  and  manner  of  doing  business,  as  follows : 
"There  were  two  front  rooms  in  the  Piatt  House,  and  that  the 
west  one  was  used  for  an  office,  store-room  and  one  thing  and 
another;  that  there  was  a  door  between  the  two  rooms,  and  a 
front  door  opening  south  from  the  west  room,  and  that  from  the 
east  room  there  was  also  a  door  opening  to  the  south  on  the 
street,  which  was  closed  the  latter  ])art  of  June  last,  and  had 
since  that  time  remained  closed  ;  that  a  club,  or  association, 
known  as  'The  Wheaton  Co})artnership  No.  One,'  had  liiid  con- 
trol of  the  east  room  from  the  1st  day  of  July,  1874;  that  this 
eliilt  had  possession  of  this  east  room,  and  that  the  defendant 
ttiiyed  tiiero  most  of  the  time,  and  took  charge  of  it  and  kept  it 
in  order  for  the  club ;  that  in  this  room  there  was  a  bar,  the  same 


\'  -•      ■■  ."  ■    ■ 
i        :  ■ ' 

^1  ■     :n 

f 

1, 

ti 


•^  ■»;.?' jj^M       W7^ 


AMERICAN  CRIMINAL  REPORTS. 


EK 


i 


1 


which  was  there  and  kept  by  the  defendant  before  that  time ; 
that  there  was  kept  there  lager  beer,  two  kinds  of  whisky,  bit- 
ters, wine,  a  beer-cooler  and  glasses,  with  a  lunch,  but  no  ])randy ; 
that  the  defendant  had  absolute  control  of  the  east  room  during 
the  night  time,  and  that  from  the  Ist  day  of  July,  1874,  to  the 
4:th  day  of  October,  1 874,  this  beer  and  other  liquors  were,  from 
time  to  time,  delivered  in  glasses  to  different  persons  in  this 
room;  that  the  liquors  were  often  replenished  by  defendant; 
that  moneys  received  by  defendant  were  by  him  put  in  his  pocket, 
that  the  cost,  or  price,  of  one  glass  of  beer  was  five  cents,  and 
five  cents  for  the  poorer  quality  of  wliisky,  and  ten  cents  for 
the  better  quality,  ten  cents  a  glass  for  wine,  one  kind  of  cigars 
for  five  cents,  another  kind  ten  cents  each ;  that  the  defendant 
had  nailed  up  on  the  bar  a  United  States  government  license, 
before  the  1st  day  of  July,  1874,  and  that  it  had  remained  there 
ever  since ;  that  the  defendant,  and  also  his  father,  drank  liquor 
there  without  paying  for  it ;  that  liquor  was  delivered  to  boys 
under  the  age  of  twenty-one  years,  but  persons  living  outside  the 
county  did  not  get  liquors  there." 

Tickets  were  issued  to  persons,  on  becoming  members  of  tlie 
association,  entitled  "Certili(!afes  of  copartnership  investment  iu 
the  Wheaton  Copartnership  Company  No.  One,"  signed  by  the 
president  and  secretary,  with  figures  printed  thereon  from  1  to  20, 
both  numbers  inclusive.  Such  tickets  cost  one  dolhir.  Whenever 
a  member  wanted  anything  at  the  bar,  he  })resented  his  ticket,  and 
it  was  punched,  by  cutting  one  number  for  a  glass  of  beer,  one 
for  a  poor  grade  of  whisky,  two  for  a  better  grade  and  two  fur 
a  glass  of  wine,  and  if  he  took  a  cigar,  the  ticket  was  pun(;hod 
in  the  same  manner,  according  to  the  price  of  the  cigar  selected, 
each  number  representing  five  cents. 

Although  the  business  had  been  carried  on  in  tl's  way  from 
the  Ist  of  July  to  0('tul)er,  no  distribution  of  proj  had  heen 
made  among  the  alleged  members,  nor  had  the  ti  uirer'  been 
called  upon  to  render  any  account.  The  whole  >  .isiness  was 
transacted  by  defendant.  All  [)urchases  were  made  by  him,  ho 
received  all  moneys  for  tickets,  paid  all  bills,  and  if  ho  kept  any 
account  with  the  association,  the  proof  fails  to  show  it.  The 
proof  is,  "  that  moneys  received  by  the  defendant  were  by  hiin 
put  in  his  pocket,"  and  no  other  account  is  given  of  the  receipts. 
Any  person,  it  appears,  could  become  a  member  of  the  associa- 
tion simply  by  buying  a  ticket.     The  witness,  whose  testimony 


RICKART  V.  PEOPLE. 


389 


vre  have  before  cited,  says,  "  that  he  supposed  a  perscni  might 
join  tlie  chib,  call  for  a  glass  of  beer,  get  it,  have  his  ticket 
punched,  and  then  offer  back  his  ticket  and  demand  the  balance 
of  the  money  paid  in  by  him,  get  it,  and  cease  to  be  a  member 
of  the  club."     It  is  averred,  however,  nothing  of  the  kind  has 
ever  occurred,  but  the  witness  states  he  had  known  an  instance 
of  a  person,  who  was  not  a  member,  drinking  beer  that  belonged 
to  the  club  in  the  chib-room.     All  this  is  plainly  a  device,  on 
the  part  of  defendant  and  those  who  desire  to  patronize  his  bar, 
to  avoid  the  provisions  of  the  law,  and  to  enal)le  him  to  sell 
intoxicating  liquors  at  retail,  as  he  had  formerly  done,  without 
first  obtainir^  >,  license  to  keep  a  dram-shop.     The  purpose  and 
object  is  so  transparent,  that  the  subject  need  not  be  seriously 
discussed.     The  whole  thing  is  a  subtle  artifice,  planned  with  a 
view  to  avoid  the  penalties  denounced  against  persons  violating 
the  law.     The  ticket  arrangement  was  simply  paying  in  advance 
and  getting  the  liquors  at  convenient  seasons,  when  desired.  The 
proposition  is  absurd,  that  the  ticket-holders  really  owned  the 
lifpiors  with  which  the   bar  was  stocked.     Each  party  bought 
tickets,  to  be  used  at  the  bar  when  he  wanted  anything,  and  for 
no  other  purpose.     Should  we  adopt  the  theory  of  the  defense, 
that  the  several  ticket-holders,  or  parties  constituting  the  associa- 
tion, in  fact  owned  the  liquors  in  the  saloon,  it  would  make  no 
better  case  for  defendant,  and  a  vastly  worse  one  for  the  parties 
associated  with  him.     In  that  view,  the  liquors  would  belong  to 
the  company  as  partnership  stock,  and  the  company  would  have 
no  more  rightful  authority  to  soil  to  the  individual  members,  or 
nirtners,  at  retail,  without  a  license  to  keep  a  dram-shop,  than  a 
:iicre  stranger  would  have.     Buying  tickets,  as  we  have  seen,  waa 
simply  buying  twenty  drinks  an^l  paying  for  them  in  advance 
Each  one  paid  for  whatever  he  got,  as  he  would  have  done  had  he 
bought  of  a  licensed  seller.     It  is  preposterous  to  assume  that  a 
iiuuiher  of    persons  niay,  with   im])unity,  associate  themselves 
together  as  a  firm  or  voluntary  company,  purchase  a  quantity  of 
li(piorB  and  retail  them  out  to  the  several  members  as  they  would 
to  strangers.     Such  an  enterjjrise  is  unlawful,  and  all  concerned 
would  be  guilty  of  violating  the  statute.     If  such  a  device  could 
be  tolerated,  it  would  render  all  legislation  on  this  sul)jcct  nuga- 
tory,   l^ut  the  alleged  association  is  a  mere  fiction.    It  is  nothing 
hut  a  device,  under  the  guise  of    a  copartnership   company, 
adopted  to  enable  defendant  to  sell  intoxicating  liquors  to  whom- 


■I  ;  i   U 


^:H 


■  1' 

1 

390 


AMERICAN  CRIMINAL  REPORTS. 


soever  might  desire  to  buy  at  his  counter,  and  to  enable  him  to 
do  so  without  taking  out  a  license  for  that  purpose,  as  the  law 
requires. 

The  real  object  of  the  parties  engaged  in  the  business  was  pur- 
posely concealed  in  the  articles  of  association.  Had  it  been  an 
honest  enterprise,  there  would  have  been  nothing  to  conceal.  It 
was  adopted  under  legal  advice,  and  is  obviously  nothing  but  a 
shift,  or  device,  to  evade  the  provisions  of  the  law,  and  whatever 
liquors  were  either  given  away  or  sold  for  tickets,  under  that 
arrangement,  come  within  the  definition  of  "  unlawful  selling." 
It  was  a  question  of  fact  whether  the  association  was  a  mere 
shift,  or  device,  to  evade  the  provisions  of  the  law,  and  the  jury 
having  found  it  was,  we  see  no  reason  to  be  dissatisfied  with  the 
conclusion  reached. 

The  evidence  so  fully  and  so  clearly  sustains  the  verdict,  that 

we  have  not  deemed  it  necessary  to  remark  upon  the  instructions. 

Any  other  verdict  than  the  one  rendered  would  have  been  against 

the  weight  of  the  evidence. 

The  judgment  must  be  affirmed. 

Judgment  affirmed. 

Note. — For  cases  in  which  eimilar  inc^enious  schemes  were  put  in  opera- 
tion in  an  effort  to  evade  the  law,  see  Marmont  v.  SMe,  48  Ind.,  21  (S.  C,  1 
Am.  Cr.  Rep.,  447);  Slate  o.  Mer^r,  32  Iowa,  40");  Commonwealth  v.  Smith,\^l 
Mass.,  144.  In  tlie  last  named  case,  the  verdict  ajrainst  \\w  defendant  was  set 
aside,  because  the  court  assumed  that  the  club  was  a  mere  device  to  evade 
the  law,  instead  of  leaving  it  to  the  jury  to  determine  as  a  question  of  fact. 


p^. 


State  v.  Starr. 

(67  IVJp.,  242.) 

LiQtTOn  SETiT,mo:     What  is  mult  liquor,  n  (/iimtion  of  fact. 

Under  the  Maine  statute,  which  provides  that  ale,  porter,  strong  beer,  InRcr 
beer,  and  all  other  malt  Tuiuorw,  shall  hv  considered  intoxicatiug  liinuirs 
witliin  the  nieaninir  of  the  act,  what  li(|nc)is  are  mall  liquors  within  the 
meaning  of  the  act,  is  u  question  of  fact  for  the  jury  and  not  of  law  for 
the  court. 

Ltbuky,  J.  These  cases  are  indictnioiitp,  one  for  being  a  com- 
mon seller  of  intoxicating  liquors,  the  other  for  keeping  a  driiik- 
iiig-house  and  tippling-shop.  The  cvccptions  are  the  same  in 
both  cases,  and  therefore  they  are  considered  together. 


.i;? 


■A 


STATE  V.  STARR. 


391 


a^le  him  to 
as  the  law 

!S8  was  pur- 
it  been  an 
ionccal.  It 
filing  but  a 
d  whatever 
under  tliat 
al  selliii.r.'» 
v^as  a  mere 
id  the  jury 
3d  with  the 

erdict,  that 
istructions. 
een  against 


affirmed. 

)ut  in  opera- 
..21(8.  C.,1 
».  ffmith,  m 
idnnt  was  set 
ice  to  L'VHile 
an  of  fact. 


?  beer,  lager 
iliii^  li(|iuirg 
s  within  tiie 
.  of  luw  for 


ng  a  cniii- 
ij^  a  drink- 
s  Banie  in 


To  sustain  the  issue,  the  government  introdiiood  evidenee 
tending  to  sliow  the  sale  of  an  article  called  "  Stanley's  Hop 
Beer."  This  article,  the  government  contended,  was  a  malt 
liqnor  within  the  meaning  of  sec.  22,  c.  27,  of  the  Ecvised  Stat- 
utes, which  was  denied  by  the  respondent.  The  statute  referred 
to  declares  that  "  ale,  porter,  strong  beer,  lager  beer  and  all  other 
malt  liquors  shall  be  considered  intoxicating  liquors  within  the 
meaning  of  this  chapter,  as  well  as  all  distilled  spirits."  All  the 
requested  instructions  which  are  relied  upon  by  the  counsel  for 
the  respondent  are  based  upon  the  ground  that  it  was  the  duty 
of  the  court  to  instruct  the  jury,  as  a  matter  of  law,  what  are  the 
"malt  liqucrs"  intended  by  the  statute,  and  embraced  in,  and 
prohibited  by  it.  We  think  they  were  properly  refused.  The 
term  malt  liquor  is  a  general  term,  embracing  several  kinds  of 
liquor ;  what  liquors  are  embraced  in  it,  as  well  as  the  mode  of 
their  manufacture  and  the  ingredients  of  which  they  are  com- 
posed, is  a  question  of  fact  for  the  jury,  and  not  of  law  for  the 
court.  In  every  case  in  which  the  question  is  involved,  it  18 
competent  for  both  parties  to  show  by  proper  evidence,  what  a 
malt  liquor  is,  how  it  is  manufactured,  and  of  what  it  is  com- 
posed, and  also  to  show  whether  the  particular  liquor  in  contro- 
versy is  or  is  not  a  malt  liquor,  and  the  jury  must  determine  the 
issue  upon  the  evidence.  The  court  might  as  well  be  required 
to  instruct  the  jury,  as  matter  of  law,  what  liquors  are  embraced 
in  the  term  ale,  or  distilled  spirits.  The  question  is  the  same  in 
|)rinciple  as  that  which  would  arise  under  the  same  section  of 
the  statute,  if  the  liquor  sold  was  one  not  therein  specifically 
declared  to  be  intoxicating,  but  claimed  to  be  intoxicating  by  the 
''overnnient.  In  such  case  it  is  well  settled  in  the  state  of 
Massiiehusetts,  that  what  is  an  intoxicating  liquor,  and  whether 
the  liquor  sold  was  intoxicating  or  not,  are  questions  of  fact  to 
be  determined  by  the  jury  upon  the  evidence  in  the  case:  State 
V.  W(i//.  -U  "Maine,  105  ;  Com momoealth  r.  ClutjijuJ,  lltl  Ma.ss., 
7;  Commonwealth  v.  Bios,  Id.,  5G 

Except  I  oils  overrvled. 

Appi.kton,  C.  J..  DrnKKRsoN.  Bakuows.  Danforth,  and  Virchn, 
iTJ.,  concurred. 

Note. — The  rullowini!;  cases  (Icridc  lliat,  wlu'thcr  nnj'  partioiilnr  liquor  or 
Itcvnrattc  is  into.vicMtiiiL',  is  a  question  of  fact  and  not  of  law:  f^talr  v.  Piddle, 
M  N.  II.,  371)  (S.  C.  1  Am.  Cr.  I{ep.,  411(1);  /Ml/>rop  v.  State,  50  lad.,  555  (S.  0., 
1  Am,  Cr.  Rep.,  4»(t);  Stale  r.  Loikj,  74  N.  C,  l','l. 


^fiT 


i 

^ 

;y'v 

STi^'f 

<:       )i 

^  *  ■•» ;  I 


392  AMEIUCAN  CHLMLVAL  UEPOllTS. 


Statk  v.   IIyxks. 

(CO  Me.,  114.) 

LiQUon  Selling:    Evidence — Charge, 

On  the  trial  of  the  responilcnl  for  Iwrn'S.  a  common  seller  of  intoxirntin;; 
liquors,  a  charffo  "that  tlic  jury  eoulrl  infer  the  fact  of  sales  from  cir- 
cumstances, and  the  situation  of  the  respondent,  if  they  were  satistied  to 
do  so,''  is  not  erroneous. 

On  such  a  trial  wiiere  children  have  testified  to  going  to  the  defendant's  shop 
and  purchasing  liquor,  it  is  proper  to  admit  their  mother  to  testify  tiiat 
they  had  been  .sent  there  for  li(iuor,  had  been  furnished  with  money  and 
a  bottle,  and  had  gone  out  and  returned  with  tlie  liquor,  although  slie 
did  not  herself  know  that  they  got  it  of  the  defendant. 

Appleton,  C.  J,  The  defendant  was  indicted  as  a  common 
seller  of  intoxicating  liquors,  and  found  guilty. 

The  presiding  justice  instructed  the  jury  :  "That  there  must 
be  proof  of  a  plurality  of  actual  sale.^i,  and  saflBcient  of  them  to 
satisfy  the  jury  of  the  offense  alleged ;  but  that  the  government 
were  not  required  to  prove  a  plurality  of  sales  by  witnesses  who 
purchased  liquor  of  the  respondent,  or  by  persons  who  have  seen 
liquors  sold  by  the  respondent  or  by  his  clerks  and  agents ;  tluit 
the  jury  could  infer  the  fact  of  sales  from  circumstances,  and 
the  situation  of  the  respondent,  if  they  were  satisfied  to  do  so." 

Exception  is  taken  to  the  latter  clause  of  the  instruction.  Rut 
all  crimes  may  be  proved  by  circumstantial  evidence.  The  situ- 
ation of  the  respondent,  his  conduct,  his  acts,  may  become  of  the 
utmost  importance  in  determining  the  question  of  his  criminality. 
Circumstances  and  the  situation  of  the  accused  may  I>e  of  so 
criminative  a  character  as  not  merely  to  jiistit'y,  but  imperatively 
to  require  a  verdict  of  guilty  of  even  the  highest  crimes  known 
to  the  law.  The  common  seller  of  intoxicating  li<piors  has  no 
peculiar  grounds  for  exennption  from  the  general  principles  of 
law  adopted  in  the  investigation  of  crime:  State  v.  O' Conner^ 
49  Maine,  594. 

The  evidence  shows  that  Mrs.  Kelty  supplied  her  two  children 
with  a  bottle  and  money  to  purchase  liquor,  and  that  they 
returned  with  it.  The  cliildren  sent  on  this  errand  testified  that 
they  received  the  money  and  purchased  the  liquor  of  tlie  respond- 
ent. True,  the  children  testified  they  received  the  money  and 
returned  with  the  liquor,  but  the  government  had  an  unquestion- 


I 


ADAMS  V.  STATE. 


893 


able  right  to  strengthen  their  testimony  as  to  these  facts.  The 
evidence  of  Mrs.  Kelty  of  itself  proved  nothing,  but  in  connec- 
tion with  the  other  testimony  it  was  of  importance.  No  other 
exceptions  to  the  rulings  of  the  pref?iding  justice  are  relied  upon. 

Exceptions  overruled. 

Walton,  Dickerson,    Barrows,    Virgin  and  Peters,    JJ., 
concurred. 


AsAHS  V.  State. 

(25 Ohio  St.,  584.) 

LIQT70B  BEliLnra:    Evidence — Reputation  aa  to  habit  of  becoming  intoscicated— 
OroM-examination — Exception  to  whole  charge. 

On  a  prosecution  for  selling  liquor  to  a  person  in  the  habit  of  becoming  intoxi- 
cated, where  it  has  appeared  that  such  person  relides  in  the  neighborhood 
of  the  respondent,  and  that  he  is  in  the  habit  of  becoming  intoxicated, 
the  state  has  a  right  to  give  evidence  of  his  general  reputation  in  the 
neighborhood  in  that  regard,  for  the  purpose  of  proving  knowledge  of 
that  habit  on  the  part  of  tlie  respondent. 

The  trial  court  has  a  discretion  to  allow  the  prosecution  to  elicit,  on  cross- 
examination  of  the  respondent's  witnesses,  material  evidence  in  support 
of  the  case  in  cliief,  even  though  such  witnesses  did  not  testify  as  to  such 
matters  in  their  direct  examination,  and  the  judgment  will  not  be  reversed 
biTiuisc  tliat  has  been  done,  unless  it  appears  that  there  was  such  an  abuse 
of  discretion  as  to  deprive  the  respontlcnt  of  a  fair  trial. 

Where  llie  charge  consists  of  several  disliuct  propositions,  some  of  which  are 
correct,  a  general  exception  to  the  wV.ole  charge,  and  every  part  of  it,  will 
not  l)e  considered  by  the  appellate  court.  The  party  excepting  should,  at 
the  time,  point  out  definitely  the  part  of  the  charge  excepted  t",  and  state 
the  grounds  of  his  exception. 

Hex,  J.  The  questions  presented  for  determination  here  arise 
upon  exceptions  taken  : 

1.  To  the  ruling  of  the  court  permitting  the  state,  on  cross- 
examination  of  witnesses  produced  and  examined  by  the  plaintiff 
in  error,  to  interrogate  them  as  to  the  general  reputation  of  the 
person  to  whom  the  sale  of  the  intoxicating  liquor  is  alleged  to 
have  been  made,  for  habits  of  intoxication,  in  the  neighborhood 
wliere  the  defendant  lived,  when  no  question  had  been  asked  in 
chief,  by  the  plaintiff  in  error,  in  regard  to  his  reputation  in  that 
lehalf. 

2.  To  the  admission  of  evidence  of  the  general  reputation  of 


wl 


i  ^ 


IP 


my^  t 


■V- 
+  : 
i 


■4 


!!' 


i"*:'*! 


394 


AMERICAN  CRIMINAL  REPORTS. 


the  person  to  whom  the  intoxicating  liquor  was  sold,  for  habits 
of  intoxication,  in  the  neighborhood  where  the  plaintiff  in  error 
resided,  for  the  purpose  of  proving  knowledge  of  that  habit  on 
his  part. 

3.  To  the  instructions  given  by  the  court  to  the  jury ;  and, 
4.  To  the  overruling  of  the  motion  to  set  aside  the  verdict  and 
for  a  new  trial. 

The  exceptions  will  be  considered  in  the  order  named : 

1.  The  rule  contained  in  section  151  of  the  Code  of  Criminal 
Procedure,  on  the  subject  of  the  order  of  the  production  of  evi- 
dence, although  directory  merely,  should  be  observed  in  all 
criminal  trials  ;  but  if  the  court  permitted  evidence  in  chief  to 
be  given  on  the  part  of  the  state,  on  cross-examination  of  the  wit- 
nesses of  the  plaintiff  in  error,  the  judgment  will  not  be  reversed 
on  that  ground,  unless  it  appears  that  there  was  such  an  abuse  of 
discretion  as  to  have  deprived  the  plaintiff  in  error  of  a  fair  trial: 
Erans  v.  The  State^2\:  Ohio  St.,  458;  Itew  v.  Missoun,  17 
AVall.,  532.  It  is  plain  that  the  discretion  exercised  in  the 
l)resont  case  was  not  of  that  character. 

2.  The  court,  in  our  opinion,  did  not  err  in  the  admission  of 
the  testimony  excepted  to.  It  appears,  from  the  bill  of  exeep- 
tions,  that  evidence  had  been  produced  by  the  state  showing  that 
tlie  person  to  whom  the  intoxicating  liquor  was  sold  was  in  the 
habit  of  getting  intoxicated,  and  that  he  resided  in  the  neigh bur- 
liood  of  the  plaintiff  in  error.  Evidence  of  his  reputation  in  that 
regard  was,  therefore,  properly  admissible,  as  a  cireiiiiistance 
tending  to  prove  knowledge  of  that  habit  on  tlie  part  of  the 
plaintiff  in  error ;  and  that  this  was  the  sole  and  only  purpo.>e 
for  which  the  testimony  was  admitted,  is  evident  from  the 
instructions  given  by  the  coi.i-t  to  the  jury  on  this  subject. 

3.  Tlie  charge,  which  is  set  out  in  the  bill  of  excej)tions,  coii- 
sists  of  several  propositions,  some  of  which  are  in  accordance 
with  law,  and  undoubtedly  correct,  and  others  of  doubtful  cm- 
rectness.  The  exception  is  a  general  one  to  the  whole  and  every 
part  of  it.  The  argument,  however,  presents  two  points  u])ou 
which  it  is  claimed  the  court  erred  :  1.  In  its  definition  of  the 
word  intoxication ;  and,  2.  In  the  instruction  given  as  to  what 
constitutes  the  habit  of  getting  intoxicated.  The  exception 
being  a  general  one,  did  not  call  the  attention  of  the  court  to  the 
points  now  claimed  to  be  erroneous,  nor  did  it  suggest  to  his 


i 


::i=Vl'S 


ADAMS  V.  STATE. 


395 


mind  what  the  counsel  excepting  would  have  him  hold,  nor 
wherein  his  charge  was  wrong. 

It  seonis  to  be  well  settled,  both  upon  principle  and  authority, 
that  ill  excepting  to  the  charge  of  a  judge,  the  party  excepting 
should,  at  the  time,  point  out  definitely  the  part  of  the  charge 
excepted  to,  and  state  the  grounds  upon  which  he  excepts ;  and 
it  is  equally  well  settled,  that  unless  the  exception  directs  the 
attention  of  the  judge  to  the  portion  or  proposition  of  the  charge 
excepted  to,  and  specifically  and  distinctly  the  grounds  of  the 
exception,  a  reviewing  court  is  not  bound  to  take  any  notice 
of  the  exception,  nor  to  look  beyond  the  grounds  of  the  excep- 
tion thus  stated. 

In  Bain  v.  Whitehaven  <&  Furnesa  Junction  Railway,  3 
House  of  Lords  Cases,  16,  Lord  Brougham  held :  "  It  is  neces- 
sary that  when  a  party  excepts  to  the  reception  of  evidence,  or 
to  the  rejection  of  evidence,  or  to  the  direction  of  a  judge  given 
to  the  jury,  whatever  is  the  subject-matter  of  his  exception,  he 
must  state  the  ground  of  his  exception,  otherwise  he  can  not 
except.  It  is  not  enough  for  him  to  say :  '  I  except  to  the 
receiving  of  A's  evidence ; '  or,  '  I  except  to  the  rejection  of  A's 
evidence ; '  or,  '  I  except  to  the  first  [)assage  in  the  direction 
given  by  the  learned  judge  to  the  jury.'  In  all  these  cases  the 
ground  of  the  objcctioji  must  be  clearly  stated,  and,  beyond  the 
ground  of  the  objection  thus  stated,  the  court  is  not  bound  to 
look." 

In  Jones  v.  Osyoail,  2  Seld.,  233,  it  was  held :  "  A  general 
exception  '  to  the  whole  charge  of  a  court,  ami  to  each  part  of 
it,'  when  the  charge  contains  mure  than  a  single  proposition  of 
law,  and  is  not  in  all  respects  erroneous,  presents  no  question  for 
review  on  api)eal.'' 

These  rules,  it  is  said,  have  their  foundation  in  a  just  regard  to 
the  fair  administration  of  justice,  which  requires  that  when  an 
error  is  supposed  to  have  been  committed  there  should  be  an 
(ipportunity  to  correct  it  at  once,  before  it  has  had  any  conse- 
quences, and  does  not  permit  the  ])arty  to  lie  by,  without  stating 
the  ground  of  his  objection,  and  take  the  chances  of  success  on 
the  grounds  on  which  the  judge  has  placed  the  cause,  and  then,  if 
he  fails  to  succeed,  avail  himself  of  an  objection  which,  if  it  had 
been  stated,  might  have  been  removed  :  Insurance  Co.  v.  Lew^ 
21  Wall.,  158 ;  Jones  v.  Osgood,  2  Seld.,  233. 


AMEHICAN  CRIMINAL  RKPOHTS. 


i/ 


We  thi'^k  these  rules  are  correct  in  principle,  and  properly 
apply  to  tais  case. 

4.  The  remaining  assignment  of  error  is,  that  the  court  of 
common  pleas  erred  in  overruling  the  motion  to  set  aside  the 
verdict  and  for  a  new  trial. 

The  testimony,  as  reported  in  the  bill  of  exceptions,  does  not 
in  our  opinion,  present  a  case  which  would  authorize  us  to  say 
that  the  court  below  erred  in  overruling  the  motion,  on  the 
ground  that  the  verdict  was  not  sustained  by  sufficient  evidence. 

Judgment  affirmed. 

McIlvaine,  C.  J.,  "Wklch,  WnrrE  and  Gii.moke,  JJ.,  con- 
cnrred. 


Johnson  v.  People. 

(83  111.,  431.) 

Liquor  BELiiiNO:    Constitutional  law  —  Evidence — Cumulaftve  sentence. 

It  seems  that,  in  Illinois,  if  the  title  of  a  bill  fully  covers  the  subject  of  a 
bill  at  the  time  that  it  passes  the  senate,  and  afterwards  its  title  is  iiniended 
in  the  senate  by  less  than  a  majority  of  the  senators  elect,  if  the  amended 
title  fully  embraces  the  objects  of  the  bill,  and  the  bill,  with  tlie  nnuiidcd 
title,  is  passed  by  the  house  of  representatives,  and  is  in  thiit  form  con- 
stitutionally passed  throu,a:li  that  body,  the  law  is  constitutionally  a(loi)ted. 
It  is  not  necessary  that  the  title;  by  which  the  bill  passes  both  Iiousm 
sho\dd  be  the  .same,  so  long  as  both  titles  fully  cover  the  object  and  jmr- 
poses  of  the  bill. 

Where  there  is  a  direct  contradiction  lu^tween  two  witnesses,  it  is  for  the  jury 
to  determine  whicli  is  worthy  of  belief,  and  their  determiniition  ought 
not  to  be  lightly  disturbed. 

Where  it  appears  that  one  chari^cd  with  selling  li((Uor  to  minors,  was  engaired 
in  making  change  for  sales  made  by  others,  and  that  he  made  ciiaiige  on 
the  very  .sale  in  question,  he  is  just  as  guilty  as  though  he  had  sold  the 
liquor  himself. 

In  order  to  constitute  an  unlawful  sale  of  liquor  to  a  minor,  under  the  Illinois 
statute;,  it  is  not  necessary  that  the  respondent,  or  anyone  connected  witli 
Inm,  slKJuld  be  the  keeper  of  a  dramshop. 

Where  a  cumulative  sentence  of  imprisonment  is  passed  on  a  conviction  on 
several  coiuits.  the  judgment  .sliould  not  fix  the  day  and  hour  on  whirli 
each  successive  term  of  imprisonment  should  commence,  but  should 
simply  direct  that  each  successive  term  should  begin  on  the  expiration  of 
the  one  preceding. 


^1 


mi 


m^^ 


f 


JOHNSON  V.  PEOPLE. 


39; 


I  properly 

'  court  of 
aside  the 

(iocs  not, 

us  to  saj 

n,   on  the 

evidence. 

ffirmed. 
«JJ.,  con- 


sentenee, 

^ultjcct  of  a 
is  anieiided 
lie  iiniended 
li<!  imu'iidcd 
t  form  con- 
llyadoiitfd. 
loth  Iiousea 
I'l  and  pur- 

or  tlic  jury 
lion  onglit 

as  <'n.i:airt!d 
(•iiaii,:;c  on 
(1  .sold  the 

llic  Illinois 
c'cted  Willi 

viol  ion  on 
'  on  wliirli 
ut  should 
piralion  of 


Walker,  J.  It  is  first  urged,  that  the  evidence  fails  to  sus- 
tain a  verdict  of  guilty  under  the  sixteenth  count,  and  that  there 
was  no  other  count  under  which  plaintiff  in  error  could  have 
been  convicted  of  sales  actually  made  by  him.  Barton  swears 
that  plaintiff  ia  error  sold  to  him  two  glasses  of  beer,  one  for 
himself  and  the  other  for  one  Bitner.  Plaintiff  in  error  denies 
tliat  there  was  any  such  sale  ;  that  he  sold  none  to  him,  nor  did 
he  sell  to  any  other  person.  Barton  testified  that  he  was  eighteen 
years  old. 

There  was  a  flat  contradiction  between  the  statements  of  these 
witnesses,  and  it  was  for  the  jury  to  judge  of  their  veracity,  and 
having  done  so,  their  action  will  not  be  lightly  disturbed.  The 
jury  had  the  witnesses  before  them,  and  could  see  their  manner 
of  testifying,  and  they,  no  doubt,  in  determining  the  truth,  took 
into  consideration  all  the  attending  circumstances  of  the  case. 
Plaintiff  in  error  was  deeply  interested  in  the  event  of  the  trial, 
and  the  prosecuting  witness  was  not,  so  far  as  this  record  dis- 
closes. This,  of  itself,  for  aught  we  can  know,  may  have  fully 
warranted  the  jury  in  giving  credence  to  the  evidence  of  the  prose- 
cuting witness.  For  anything  we  can  know,  the  manner  of 
plaintiff  in  error,  when  on  the  stand,  may  have  been  such  as  to 
satisfy  the  jury  that  he  was  unworthy  of  belief. 

It  is  urged  tha*^  the  prosecuting  witness  was  ignorant,  and 
hence  we  should  not  give  him  credit  for  truth  and  veracity.  He 
seems  not  to  have  known  in  what  county  Knox's  Grove  was 
situated.  This  may  be  true,  and  still  the  witness  be  entirely 
truthful  as  to  what  he  does  know.  Men,  with  but  few  if  any 
exceptions,  are  ignorant  on  some  questions,  and  no  one  for  that 
reason  doubts  their  veracity.  This  objection  was,  no  doubt, 
fully  considered  by  the  jury,  and  they  were  convinced  that  he 
spoke  the  truth,  and  we  see  no  reason  to  say  they  were  mistaken. 

It  is  also  urged,  plaintiff  in  error  was  improperly  convicted 
under  the  other  counts — that  he  was  simply  employed  to  make 
change  for  th  .  six  or  (seven  persons  who  were  selling  beer,  lem- 
onade, candy,  etc.  He  and  the  others  were  acting  in  concert. 
They  were  carrying  out  a  common  purpose.  He  aided  in  mak- 
ing these  sales  if  he  gave  change  when  the  minors  purchased 
the  beer,  lie,  to  that  extent,  aided  and  assisted  in  making  these 
sales.  He  thereby  took  an  active  part,  and  was  one  of  the  actors. 
It  may  be  he  was  not  as  active  as  others,  but,  nevertheless,  he 
acted  conjointly  with  the  salesmen.     He  made  no  protest  against 


'V\Vfl< 


run 

i" 


s  ;■ 


398 


AMERICAN  CRIMINAL  REPORTS. 


I 

I 


I? 

If  - 


L 1 


such  sales,  and  being  present,  and  participating  in  wliat  was  dune, 
the  jury  were  warranted  in  finding  that  he  knew  beer  was  being 
sold  to  minors,  and  that  he  aided  and  abetted  in  such  sales.  It 
is  next  urged,  that  there  is  no  averment  in  the  indictment  that 
plaintiflE  in  error,  or  that  any  person  with  whom  he  was  acting  was 
the  keeper  of  a  dram-shop.  The  sixth  section  of  the  drani-sliop 
act  provides,  that  "  whoever,  by  himself  or  his  agent  or  survaiit, 
shall  sell  o^-  give  intoxicating  liquor  to  any  minor,  without  the 
written  <  n^or  of  his  parent,  guardian  or  family  physician,    * 

*  *  for  each  oifcnse  shall  be  fined,"  etc.  Now,  there  is  no 
reference  in  this  section  to  the  keeper  of  a  dram-shop.  The  lan- 
guage is  sufficiently  broad  to  embrace  all  other  persons,  as  well 
as  the  keepers  of  dram-shops.  The  manifest  object  of  this  sec- 
tion is  to  prevent  the  sale  or  giving  of  liquors  to  minors,  without 
the  consent  of  parents,  guardians,  etc.  To  hold  that  it  only 
applied  to  keepers  of  dram-shops,  would  do  violence  to  the 
design  of  the  general  assembly  in  adopting  this  section.  It  is 
not  necessary  to  now  determine  whether  a  person  would  incur 
the  penalty  of  this  section  by  giving  it  as  an  act  of  hospitality 
at  his  house,  as  tluit  question  is  not  before  the  court.  The  ques- 
tion here  is,  whether  a  person  having,  or  not  having,  a  license  to 
keep  a  dram-shop  may  sell  intoxicating  drink  to  minors,  and  we 
think  it  is  manifest  he  can  not,  without  incurring  the  penalty 
prescribed  by  the  law.  It  is  also  urged,  that  the  act  under  which 
this  prosecution  was  conducted  is  void,  under  our  fundamental 
law.  It  is  claimed,  that  whilst  the  body  of  the  law  was  adu|)ted 
on  the  call  of  the  "  ayes"  and  "  noes,"  spread  upon  the  journals 
of  the  senate,  by  a  majority  of  all  the  senatore  elect,  the  title  to 
the  act  only  passed  by  a  majority  of  a  quorum.  The  journals 
show  that  twenty-four  senators  voted  "  aye,"  when  it  required 
twenty-six  to  be  a  majority  of  all  the  members  elect.  Does, 
then,  the  constitution  require  such  a  majority  to  adopt  the  title 
to  a  law?  It  is  not  required  by  the  letter  of  the  constitution. 
According  to  parliamentary  usage,  the  title  is  not  an  essential 
part  of  a  bill,  although  under  our  constitutiQU  it  seems  to  be. 
Usage  authorized  it,  and  it  was  the  custom  to  adopt  the  title  to 
an  act  after  its  final  passage. 

But  our  constitution  has  worked  a  radical  change  in  this  usage, 
as  it  provides  (art.  4,  sec.  13),  that  "  every  bill  shall  bo  read  at 
large  on  three  different  days,  in  each  liouse,  and  the  bill  and  all 
amendments  thereto  shall  be  i)rinted  befoi'e  the  vote  is  taken  on 


Mikimi4tap^4ai 


^m 


JOHNSON  V.  PEOPLE. 


399 


its  tiiial  ])assafi;c ;  and  every  bill,  having  passed  both  houses,  shall 
lie  signed  by  the  speakers  thereof.  No  act  hereafter  passed  shall 
embrace  more  than  one  subject,  and  that  shall  be  expressed  in 
the  title."  This  is  all  of  the  section  which  seems  to  be  import- 
ant in  the  consideration  of  the  qiiestion  now  before  us. 

In  the  case  of  Brinz  v.  Weher,  81  111.,  288,  in  passing  on  a 
eiinilar  provision  in  the  constitution  of  1848,  applicable  to  private 
laws,  we  said  that  the  validity  of  the  act  must  depend,  under 
Fuch  a  provision,  upon  the  title  to  the  bill  as  it  passed  both 
houses,  and  not  on  the  title  to  the  law  after  its  adoption.  What 
we  there  said,  we  think  applies  to  the  requirements  of  our  present 
constitution,  as  to  the  adoption  of  general  laws.  Hence  we 
regard  it  unnecessary  to  further  discuss  this  question.  Is,  then, 
the  title  by  which  the  bill  was  passed,  sufficient  to  sustain  the 
law  ?  The  title,  as  the  bill  passed  the  senate,  was :  "  A  bill  for 
an  act  to  revise  the  law  in  relation  to  licenses."  For  the  bill, 
with  this  title,  twenty-nine  senators  voted,  and  eleven  against. 
After  the  bill  had  so  passed  the  senate,  on  motion,  the  title  was 
60  changed  as  to  read :  "  A  bill  for  an  act  to  provide  for  the 
licensing  of  and  against  the  evils  arising  from  the  sale  of  intoxi- 
cating liquors."  The  change  in  the  title  was  adopted  by  "  ayes, 
24,  noes,  11."  As  thus  amended,  the  bill  was  sent  to  the  house, 
where  it  was  constitutionally  passed  through  that  body,  with  the 
title  as  amended  in  the  senate,  and  was  returned  to  that  body, 
and  all  the  requisite  subsequent  steps  were  taken  for  it  to  become 
a  law. 

On  turning  to  the  chapter  entitled  "  License,"  in  the  Revised 
Statutes  of  1845,  we  find  that  the  first  eight  sections  refer  to 
licensing  peddlers,  auctioneers  and  merchants.  Sections  from 
nine  to  twenty-one,  inclusive,  relate  to  the  sale  of  liquors  and 
licenses  therefor.  Sections  from  twenty-two  to  twenty-eight, 
inclusive,  relate  to  licensing  insurance  companies,  and  for  the  col- 
lection of  penalties  incurred  under  the  chapter,  and  the  disposition 
of  the  money  collected  for  forfeitures.  Thus,  it  will  be  seen,  the 
law  in  relation  to  the  license  and  sale  of  intoxicating  liquors  was 
found  in  this  chapter,  and  when  the  bill  passed  the  senate,  with 
tlic  original  title,  that  title  certainly  referred  to  the  chapter  regu- 
lating liquor  licenses,  and  embraced  such  licenses,  and  that  sub- 
ject was  expressed  in  the  title.  It  may  be  that  licenses  to  sell 
li(jnor  were  not  specifically  named  in  the  title,  but  it  was 
undoubtedly  so  expressed  as  to  call  the  attention  of  every  senator 


II' 


"P 


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m 


AMERICAN  CRIMINAL  REPORTS. 


to  tlie  subject  matter  of  the  bill,  and  we  have  no  doubt  that  this 
general  expression  of  the  subject  of  the  bill  answers  the  consti- 
tutional requirement.  The  provision  does  not  require  that  the 
Biibject  of  the  bill  shall  be  specifically  and  exactly  expressed  iu 
the  title,  hence  we  conclude  that  any  expression  in  the  title  which 
calls  attention  to  the  subject  of  the  bill,  although  in  general 
terms,  is  all  that  is  required. 

This  title  calls  attention  to  the  chapter  regulating  licenses,  and 
that  chapter  provided  for  licensing  saloons,  and  as  all  the  law  on 
the  subject  was  then  only  found  under  the  title  of  that  chapter, 
we  presume  every  member  of  the  senate  knew,  by  the  title,  that 
the  bill  proposed  to  revise  that  chapter,  and  in  doing  so  that  it 
would  almost  necessarily  affect  liquor  licenses.  Had  the  bill  been 
specific,  and  the  title  had  proposed  to  license  lawyers,  physicians, 
druggists,  or  some  other  occuj)ation,  and  the  bill  had  contained 
the  provisions  as  it  was  adopted,  then  this  requirement  of  the 
constitution  would  have  probaldy  rendered  the  law  inoperative. 
But  it  was  general,  and  expressed  the  subject  of  the  bill  generally, 
but  with  sufHcient  distinctness  to  answer  the  constitutional 
requirement,  so  that  if  the  title  must  be  adopted  as  is  the  bill  on 
its  final  passage,  a  sufficient  title  was  so  adopted  when  the  hill 
passed  the  senate.  It  does  not  n)atter  in  what  maimer  the  title 
was  subsequifntly  changed  by  the  senate,  so  the  title  thus  changed 
called  the  attention  of  the  house  to  the  provisions  of  the  bill,  and 
the  title  under  which  the  bill  went  to  the  house  was  specific  and 
certain  for  that  purpose.  We  have  no  hesitation  in  saying  tliu 
bill  was  properly  and  constitutionally  passed  into  a  law,  and  must 
be  enforced. 

But  the  court  below  erred  in  the  judgment  it  rendered  on  the 
verdict  in  this  case.  It  fixed  the  day  and  hour  when  the 
imprisonment  should  commence  under  each  count  upon  which 
plaintiff  in  error  was  found  guilty.  Since  a  Kxqyersedeits  was 
granted  in  this  case,  it  has  become  impossible  that  the  judgment 
of  imprisonment  can  be  carried  into  ciTect,  as  the  time  fixed  hy 
the  court  has  elapsed  and  expired.  Other  contingencies  might 
arise  which  would  render  it  impracticable  to  carry  such  a  jud^'- 
ment  into  effect.  The  sentence  to  imi)risonment  should  be  for  a 
B])ecified  number  of  days  under  each  count  upon  which  a  convic- 
tion is  had,  and  the  judgment  should  require  that  the  imprison- 
jnent  under  each  succeeding  count  should  commence  where  it 
ends  under  the  preceding  count,  without  fixing  the  day  or  hour 


\m 


in 


■•mMMI 


'il" 


ALBRECHT  v.  STATE. 


401 


for  each  or  either  to  commence  or  end.  For  this  error  the  judg- 
ment of  the  court  below  must  be  reversed,  and  the  cause  remanded 
with  directions  tliat  the  court  enter  a  proper  judgment  on  the 

verdict. 

Judgment  reversed. 

Note. — For  a  full  collection  of  the  authorities  on  the  subject  of  cumula- 
tive sentences,  see  note  to  Prince  v.  State,  1  Am.  Cr.  Rep.,  on  p.  548. 


Albrecht  v.  State. 


(78  111..  510.) 
Liquor  Sem.ing  :    Act  of  hospitality  not  within  the  statute. 

The  act,  title  "  Dram  Shops,"  whose  full  title  is,  "  An  act  to  provide  for  the 
licensing  of  iind  against  the  evils  arising  from  the  sale  of  intoxicating 
liquors"  (R.  S.  of  111.,  1874,  p.  4;iS),  is  not  aimed  against,  and  does  not 
include  ordinary  acts  of  hosi)itulity. 

A  brewer  who  gives  beer  to  a  person  who  comes  to  see  him  at  his  house  on 
business,  is  not  liable  under  tlie  provisions  of  section  0,  wliich  provides 
as  follows:  "Whoever,  by  himself  or  his  agent  or  servant,  shall  sell  or 
give  any  intoxicating  liquor  *  *  *  to  any  person  intoxicated,  *  * 
*  shall,  for  each  offense,  be  fined,"  etc.,  even  though  such  person  is 
under  the  influence  of  liquor. 

BuKKSK,  J.  This  was  a  prosecution,  by  indictment,  in  the  cir- 
cuit court  of  Bureau  county,  against  Jacob  Albrecht,  for  an 
alleged  violation  of  chapter  43,  R.  S.  1874,  p.  438,  title  "Dram 
Sliops."  The  title  of  the  act,  in  full,  is,  "An  act  to  provide  for 
the  licdisiiig  of,  and  against  the  evils  arising  from,  the  sale  of 
intoxicating  iiipiors." 

The  sixth  section  of  the  act  provides  as  follows:  "Whoever, 
by  himself  or  his  agent  or  servant,  shall  sell  or  give  intoxicating 
liquor  to  any  minor,  without  the  written  order  of  bis  parent, 
guardian,  or  family  j)liysician,  or  to  any  person  intoxicated,  or 
who  is  in  the  habit  of  getting  intoxicated,  shall,  for  each  offense, 
be  fined  not  less  than  twenty  dollars  nor  more  than  one  hundred 
dollars,  and  imprisonment  in  the  county  jail  not  less  than  ten  nor 
more  than  thirty  days."  The  previous  sections  define:  1.  Dram 
Bhops;  2,  i)rovide8  penalty  for  selling  without  license;  3,  how 
license  tmiy  be  granted ;  4,  the  form  of  the  license,  the  rights 
under  it,  and  how  revoked  for  violation  of  the  provisions  of  tiie 
act,  or  by  keejting  a  disorderly  or  ill-governed  house,  or  place  of 
Vol.  11.— !iO 


it!  : 


!|i       : 


N 


1 

t 

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si 

w 

H 

1 

1 

ki 

40-J 


AMKHICAN  CUIMINAL  REPORTS. 


li: 


resort  for  idle  or  dissolute  persons,  or  by  allowini?  any  illeifal 
gaming  in  the  dram  shop,  or  in  any  house  or  phu*  adjuceut 
thereto;  5,  provides  for  taking  l)ond  of  the  dram-seller,  and  how 
suit  may  be  brouglit  thereon.  Tiiis  statute  is  highly  penal  in  its 
provisions,  and  is  emphatically  a  penal  statute,  and,  according  to 
well  recognized  canons,  must  be  construed  strictly,  keeping  in 
view  the  great  central  object  the  legislature  had  in  view  in  its 
enactment,  and  the  evils  to  be  prevented.  The  title  of  the  act, 
in  the  revision  of  1874,  is  "Dram  Shops,"  and  every  section  is 
leveled  against  them,  with  a  view,  not  to  their  suj)])ressiun,  for 
they  are  licensed  to  sell  intoxicating  liquors,  and  pay  large  snms 
of  money  into  the  town  or  county  treasury  for  the  ])riviloge. 
The  provisions  of  the  act  are  aimed  at  such.  What,  then,  under 
this  view  of  the  statute,  should  be  the  construction  to  be  put  on 
the  sixth  section  ?  Can  it  be,  should  it  be,  other  than  this  :  that 
whoever,  keeping  a  dram  shop,  shall,  etc.  ? 

The  leading  facts  in  this  case  are :  that  the  defendant  was  the 
owner  and  ojierator  of  a  brewery,  sellijig  the  nninufacture  by  tlio 
keg  or  barrel  to  any  one  who   wished  to  purchase,  and  for  the 
privilege  he  became  liable  to  pay  to  the  government  of  the  Tnitcd 
States  large  sums  of  money,  demanded  by  the  internal  I'evcnue 
laws,  to  be  appro|)riated  to  the  payment  of  onr  government  debt. 
He  kept  no  dram  shop,  nor  did  he  sell  his  beverage  by  the  sniall, 
to  be  drank  on  his  premises.     One  day  about  the  last  of  iluly  or 
first  of  August,  1874,  Charles   Dewey,  the  person  to  whom  it  is 
alleged  defendant  sold  or  gave  one  or  more  glasses  of  i»eer.  canie 
to  see  defendant,  who  was  then  in  bad  health  atid  nearly  bliiwl. 
lying  on  a  lounge  in  his  house,  apart  from  his  brewery,  for  the 
purpose  of  getting  a  renewal  of  a  lease  of  some  lots  at  Ohio 
station,  on  which  he  had  erected  a  hay  press.     lie  was  accom- 
])anied  by   Mr.  Kyle,  an   attorney-at-law,  who  was  wanted  hv 
Dewey  to  draw  the  papers.     When  Dewey  and  Kyle  reached 
the  house,  and  found  defendant  in  this  condition,  they  als(»  found 
Andrew  Ross  there,  and  Samuel  Connor,  the  principal  witncsscB 
for  the  prosecution.     Koss's  business  there,  he  being  a  j)reacli<'r. 
was  t(t  aid  Connor  in  purchasing  some  lots  of  defendant,  and  to 
see  about  the  two  lots  on  which  Dewey  had  his  hay  press,  for 
the  pnrposo  of  building  a  mill  upon  them.     Koss  had  talked 
about   this  with   defendant,   when  Kyle  and   Dewey  came  in. 
Dewey  wanted  to  buy  the  lots,  as  it  would  be  expc^nsive  to  move 
his  press,  which  had  cost  him  eighteen  hundred  dollars. 


ALRRECTIT  V.  STATE. 


403 


Ross,  in  his  testiiiioiiy,  says,  he  supposes  Dewey  thought  he 
was  trying  to  get  tliese  lots,  and  he  got  mad  and  talked  pretty 
loud,  and  was  '*  a  little  boozy."  Connor,  on  his  cross-examina- 
tion, says  he  wanted  to  buy  some  lots ;  Kyle  and  Dewey  came  in 
and  went  off  together;  Dewey  was  considerably  excited:  he 
thought  he  would  lose  considerable  in  moving  his  press,  and  was 
much  excited  at  Ross.  On  his  direct  examination,  he  says 
Dewey  seemed  a  little  tight — was  intoxicated ;  called  for  beer 
twice ;  some  person  went  into  another  room  and  brought  it  out, 
and  set  the  beer  and  glasses  on  the  table,  and  all  were  invited  to 
partake.  Ross  being  a  preacher,  of  course,  declined,  never  hav- 
ing drank  intoxicating  liquors.  Connor  never  drank  anything 
intoxicating,  and  never  was  drunk. 

The  oi)posing  testimony  of  Kyle,  Dewey  and  defendant,  shows 
quite  conclusively  Dewey  was  not  intoxicated ;  that  the  beer  was 
sent  for  to  the  brewery,  and  proffered  by  defendant  to  his  visit- 
ors as  an  act  of  hospitality  to  neighbors  and  friends.  Surely,  it 
was  not  such  an  act  us  this  the  statute  in  question  was  intended 
to  punish  by  imj)risonment  in  the  county  jail.  It  has  nothing 
of  the  odor  of  a  dram  shop  about  it,  and  was  but  a  mere  courtesy 
which  this  law  was  not  designed  to  reach.  If  one  invites  his 
friends  to  dine  with  him,  and  generous  wine,  which  cheers  the 
heart,  is  pressed  upon  the  guests,  one  of  whom  happened  to  be 
excited  with  wine  when  he  came  there,  is  the  host  to  be  incarcer- 
ated for  giving  to  this  most  bibulous  guest  an  additional  glass  ? 
We  do  not  think  the  statute  should  bear  such  a  construction. 
The  culture  of  the  grape  is  recommended  by  the  moralist  and 
the  economist,  and  the  expression  of  its  juices  into  wine.  Would 
it  be  held  an  offense,  punishable  by  fine  and  imprisonment, 
should  the  vintner,  from  his  wine  press,  fill  a  flagon  and  serve  it 
to  his  guests  in  his  own  house,  at  his  table?  Where  is  the  differ- 
ence in  a  brewer  presenting  a  tankard  under  similar  circum- 
stances? Wo  cannot  believe  this  law  was  designed  to  punish 
such  UCtB. 

The  testimony,  we  think,  is  quite  snflScient  to  sliow  Dewey, 
though  highly  excited  at  what  he  believed  to  be  the  interference 
of  Ross  to  get  tiieso  lots,  was  not  intoxi(!ated.  lie  swears 
positively  he  liad  drank,  during  the  day  and  before  dinner,  but 
three  or  four  glasses  of  beer,  and  that  he  was  not  intoxicated  in 
the  slightest  degree.  Tiiere  is  not  the  slightest  proof  Dewey 
was  in  the  habit  of  getting  intoxicated. 


'I 


404 


AMERICAN  CRIMINAL  REPORTS. 


A  jury  was  waived  in  this  case,  and  we  think  the  finding  of 
the  court  was  against  the  clear  preponderance  of  the  evidence,  ami 
the  case  made  was  not  one  contemplated  by  the  sixth  section  of 
chapter  43,  title  "  Dram  Shops." 

The  judgment  must  be  reversed. 

Judgment  reverned. 

Note.  —laCarfoss  v.  State,  42  Md.,  403(8.  C,  1  Am.  Cr.  Rep..  4G0),  it  wits 
t'  .•''  that  a  statute  prohibit  inir,  among  other  tlitms.  the  giving  away  of  spirii 
i'"  .  liquors  on  election  days  by  any  person,  extended  to  and  included  acts  of 
hospitality  in  a  private  house. 


if  ' 


I^* 


Aecher  v.  State. 

(45Md.,33.) 

Liquor  selling:    Kvamn — Evidence. 

The  evidence  against  the  respondent,  who  was  charged  with  selling  lifiuor 
witliout  a  license,  tended  to  show  that  he  sold  cigarettes,  worth  from  a 
quarter  to  half  a  cent  each,  for  ten  cents  a  piece,  and  tJiat  he  gave  a 
drink  of  whisky  to  every  one  who  bought  a  cigari'tte.  IMd,  tliat  tliis 
evidence  fairly  tended  to  show  tliat  the  real  Irausaelion  was  a  sale  of  the 
whisky,  and  that  it  was  for  the  jury  to  say  whether  or  not  the  pretended 
sale  of  tlie  cigarettes  was  not  a  mere  evasion  and  sulHerfuge,  intended  to 
cover  the  sale  of  the  whisky. 

In  such  a  case  the  prosecution  have  a  right  to  press  an  unwilling  and  reluc- 
tant witness  with  searching  questions,  and  to  call  out  any  and  all  facts 
which  have  any  tendency  to  throw  light  on  the  real  nature  of  the  trans- 
act iou,  ^^, 

In  such  a  case  the  defendant  has  no  right  to  prove  that  in  other  cases  he  Imd 
treated  people  to  whisky  under  circumstances  that  did  not  constitute  Hit; 
giving  of  the  whisky  a  .sale;  or  that  he  had,  in  some  instances,  refuscil  to 
sell  whisky  either  directly  or  covertly,  Proving  that  he  had  not  violiilid 
the  law  on  other  occasions  would  have  no  tendency  to  prove  that  he  liitil 
not  violated  it  in  the  matter  for  which  he  was  being  tried. 

Even  though  the  court  permits  an  illegal  or  improper  question  to  ho  put  to 
witness,  against  the  objection  of  the  respondiint,  the  respondent  is  nut 
injured,  and  cannot  complain,  if  the  answer  is  one  which  does  not  preju- 
dice him. 

Evidence  of  similar  .sales  of  cigarettes,  and  of  the  giving  of  whisky  in  connec- 
tion therewith  on  other  occiasioiis,  is  admissible  for  the  purpose  of 
explaining  the  transaction  in  question  in  this  case. 

MiLLEE,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  was  indicted  for  selling  on  the  tenth  of  May, 


"TfP?^ 


ARCHER  V.  STATE. 


405 


finding  of 
idence,  and 
i  section  of 


reverftpd. 

,  460).  it  wius 
way  of  spirit 
luded  acts  of 


Bellinc^  Hfiuor 
vorth  from  a 
at  he  gave  a 
fdd,  Unit  this 
i  a  .sail)  of  the 
the  pret(!n(led 
!,  intended  to 

:ig  and  reluc 
and  all  fiuls 
of  tlie  Iraiis- 

cases  lie  imd 
constitute  tJM! 
es,  refused  to 
i  not  violiiicd 
e  that  lie  had 

to  1)0  put  to 
indent  is  not 
•08  not  i)i'eju- 

ky  in  connco- 
J  purpose  of 


ill  of  May, 


1875,  one-lialf  pint  of  wliisky  to  Samuel  M.  "Wliiteford,  with  a 
view  to  prolit,  in  the  prosecntion  of  a  regular  trade  and  business, 
M'itliout  having  obtained  a  license  so  to  do. 

At  the  trial  four  exceptions  were  taken  to  the  rulings  of  the 
court,  upon  the  admission  of  testimony. 

Before  noticing  these  rulings  in  detail,  it  is  proper  to  observe 
that  it  appears  from  the  testimony  in  the  case  that  the  traverser, 
who  had  no  license  to  sell  spirituous  liquors  in  loss  quantities 
tlian  a  pint,  kept  cigarettes  for  sale,  and  invited  the  purchasers  of 
tliem  to  drink  whisky  with  him.  There  can  be  no  question,  that 
if  the  price  asked  for  the  cigarettes  was  intended  to  cover  the 
price  of  the  whisky,  which  was  afterwards  nominally  given  to 
the  purchasers,  the  transaction  w^as  a  sale  of  the  whisky,  as  well 
as  of  the  cigarettes.  Such  an  attempt  to  evade  the  law  is  a  very 
sliallow  one,  and  testimony  tending  to  show  that  this  was  the 
real  character  of  the  transaction,  was  admissible  to  establish  the 
otfoiise  for  which  the  traverser  was  indicted.  We  shall  now 
consider  the  several  exceptions  in  their  order. 

First  exception. — On  the  part  of  the  stjite,  the  witness  White- 
ford  testified  that  he  went  to  the  traverser's  place  of  business,  on 
the  tenth  of  jMay,  1875,  and  paid  him  forty  cents  and  got  four 
cigarettes.  He  was  then  asked  what  these  cigarettes  were  worth, 
to  which  he  replied  he  did  not  know.  The  state  then  asked  him 
what  was  his  oj)inion  or  judgment  as  to  the  value  of  them,  and 
to  the  asking  of  this  q\iestion  the  traverser  objected.  We  see  no 
error  in  the  ruling  allowing  it  to  be  put.  It  was  important  to 
the  issue,  and  admissible,  to  show  the  actual  value  of  these  arti- 
cles, its  comjiared  with  what  he  paid  for  them,  and,  as  he  was 
evidently  a  reluctiint  witness,  it  was  proper,  after  his  previous 
answer,  to  press  him  with  the  question  as  to  what  was  his  judg- 
ment of  their  value.  It  was  not  necessary  to  inquire  first  whether 
he  was  an  expert  its  to  the  value  of  such  an  article. 

Second  exception. — The  witness  then  stated  that  these  cigar- 
ettes were  a  parcel  of  tobacco  wrapped  in  paper,  and  might  be 
worth  a  quarter  to  a  half  cent  each,  but  he  was  not  a  judge  of 
tohacco.  The  state  then  put  to  him  the  question,  whether  there 
was  anything  in  the  previous  acts  or  declarations  of  the  traverser 
which  induced  him  to  believe,  that  if  he  called  for  cigarettes,  or 
pai<l  him  at  the  rate  of  ten  cents  a  piece  for  them,  that  he  would 
get  in  return  anything  besides  the  cigarettes  for  the  same  money, 
ami,  if  80,  to  state  what  had  occurred  to  induce  him  so  to  think. 


40(5 


AMIOHICAN  CHIMIN AL  HEPOllTS. 


lit' 


ti 


1 1 


■  l 

? 

1 

i 

I 

The  traverser  objected  to  the  asking  (»f  this  question.  We  think 
the  court  was  right  in  allowing  it  to  be  put.  An  affii-niiitive 
answer,  accompanied  with  a  statement  of  such  previous  acts  aud 
declarations  of  the  accused,  would  clearly  have  been  admissible 
and  competent  evidence.  But,  if  we  are  wrong  in  this,  it  appears 
by  the  subsequent  exception  the  witness  answered  the  question 
in  the  negative,  and  hence  no  harm  was  done  to  the  traverser  by 
the  ruling  excepted  to. 

Third  exception. — The  witness  having  answered  the  previous 
question  in  the  negative,  was  then  (as  he  should  have  been  at 
iirst)  required  to  state  all  that  occurred  when  he  went  to  this 
place  on  the  day  in  question,  and  he  replied  that  he  and  four 
others  went  there,  that  he  called  for  four  cigarettes,  and  paid 
forty  cents  for  them ;  we  were  afterwards  invited  into  another 
room  and  took  a  drink  and  came  out ;  there  was  a  shelf  or 
counter  to  the  left  of  the  door;  we  walked  in  and  took  whisky; 
there  were  glasses  and  a  bottle  there;  saw  but  one  either  time; 
was  some  talk  in  there ;  went  in  first  time  with  Barton — last 
time  with  Johns ;  cigarettes  were  handed  round ;  got  one  and 
took  a  drink.  In  reply  to  questions  by  the  traverser's  counsel, 
on  cross-examination,  he  said  he  never  bought  whisky  from  the 
traverser,  and  never  had  any  contract,  understanding  or  agree- 
ment with  him,  under  or  by  which  he  was  to  give  him  whisky  if 
he  bought  cigarettes  or  anything  else.  Upon  re-examination  the 
state  asked  him  whether,  from  anything  which  had  ah-ciidy 
occurred  between  hinx  and  the  traverser,  or  in  the  j)resent'i!  (jf 
the  latter,  he  expected,  when  he  went  back  with  his  four  friomls, 
as  previously  stated,  to  get  whisky  for  tlie  money  he  paid,  au(h  if 
so,  how,  and  why  he  expected  it.  To  the  asking  of  this  (jiKstion 
the  traverser  objected.  In  view  of  what  the  witness  had  staled 
on  his  cross-examination,  we  are  of  opinion  tlicre  was  no  error  in 
allowing  this  question  to  be  asked  him.  11  is  r('|)ly  to  it,  con- 
tained in  the  next  exception,  explains  his  testimony  on  cross- 
e;cainiiiati(»n,  and  must  have  tended  strongly  to  convince  tlie 
jury  that  the  transaction  in  question  was  in  fact  a  sale  of  the 
whisky,  and  so  intended  to  be  by  the  traverser.  He  sai(h  in 
reply  to  this  question,  that  the  action  of  others  at  the  traverser's 
place  of  business,  induced  him  to  think  that  he  could  get  whi-ky 
if  he  bought  cigarettes,  as  they  luul  done,  s<>  he  went  to  the  tniv- 
erser's,  bought  cigarettes,  as  he  saw  tliem  do,  and  got  whisky 
also.     There  can,  we  think,  be  no  doubt  of  the  admissibility  nf 


ARCHER  i:  STATE. 


407 


this  evidence.  It  was  for  the  jury  to  decide,  upon  all  the  testi- 
mony before  them,  whether  the  traverser  was  guilty  of  selling 
whisky  to  this  witness,  and  the  fact  that  he  did  not  sell  it  to 
him  was  not  conclusively  established  by  the  mere  declaration  of 
the  witness,  that  he  did  not  buy  it. 

Fourth  exception. — The  state  then  proved,  by  other  witnesses, 
that  on  many  and  repeated  occasions  in  this  month  of  May,  they 
went  to  this  place  with  their  friends,  and  called  for  cigarettes, 
for  which  ten  cents  a  piece  was  paid  and  that  then  they  were 
invited  into  a  back  room,  by  the  traverser,  to  take  a  drink  of 
whisky,  and  there  were  as  many  drinks  as  cigarettes  so  obtained ; 
that  in  this  back  room  he  had  a  bench  or  counter,  with  a  shelf 
under  it,  and  bottles  and  glasses,  and  that  these  arrangements  had 
licon  made  and  fitted  up  about  the  last  of  April  or  the  first  of 
May ;  that  during  this  month  of  May  the  traverser  sent  empty 
dt-mijohns,  sometimes  two  and  sometimes  three  a  week,  down  to 
Baltimore,  to  a  grocer  and  liquor  dealer,  and  had  full  ones  brought 
back,  sealed  up.  The  state  also  proved  declarations  of  the  trav- 
ersei',  made  about  the  time  of  this  alleged  sale  of  whisky  to 
Wliiteford,  to  the  effect  that  he  had  once  before  seen  a  little  she- 
hang  in  a  place  where  all  the  taverns  were  closed,  and  that  he 
would  have  to  be  watchful  and  know  who  to  sell  to,  and  that 
once,  when  handing  the  bottle  out  to  a  friend  in  this  back  room, 
he  said  he  intended  to  do  this  to  spite  the  tavern-keepers,  because 
they  bought  the  tobacco  and  cigars  which  they  sold  from  ped- 
dlers, instead  of  from  him,  and  that  he  could  not  do  this  if  there 
was  such  a  law  as  there  was  in  Worcester  county,  prohibiting  the 
giving,  bartering  and  selling  of  liquor. 

The  defense  then  offered  to  prove  that  during  the  month  of 
May,  before  the  finding  of  this  indictment,  witnesses  had  bought 
various  articles  in  which  traverser  dealt,  such  as  tobacco,  cigars, 
snuff,  pipes,  etc.,  for  which  they  paid  full  value  and  got  full 
value  in  return,  and  that  upon  these  occasions  they  were  invited 
by  the  traverser  to  take  a  drink  with  him ;  that  others,  when 
settling  bills,  were  so  invited,  and  that  this  custom  of  his  with 
the  witnesses  of  inviting  them  to  drink,  sometimes  when  mak- 
ing purchases  and  sometimes  when  not,  had  extended  over  a 
period  of  seven  or  eight  years,  and  during  the  months  of  April 
and  May  of  the  present  year ;  that  a  doctor  and  a])otliecary  had 
olTeivd  to  piirchase  whisky  from  him  during  the  month  of  May, 
and  that  he  would  not  give  or  sell  any  to  him  at  any  price;  that 


J?  i 


r    V 


I)  ^ 


iill 


40S 


AMKUICAN  CRIMINAL  REPORTS. 


sick  persons,  during  this  month  of  Mjiy,  had  offered  to  h\iy  any- 
tliing  in  his  shop  if  he  would  let  them  have  some  whisky,  and  he 
refused. 

In  our  view  of  it,  this  offered  testimony  amounts  sini])ly  to 
this,  that  upon  other  occasions,  and  with  other  parties,  the 
traverser  did  not  violate  the  law,  and  in  other  instances  sold  in 
good  faith,  and  at  their  full  value,  articles  which  he  had  a  license 
to  sell.  In  our  judgment,  such  testimony  was  clearly  inadmis- 
sihle.  It  seems  to  us  to  have  no  tendency  to  rebut,  control  or 
explain  any  of  the  testimony  offered  on  the  part  of  the  state. 
''  Proof  that  a  man  has  violated  the  law  in  particular  instances, 
cannot  he  rebutted  by  proof  that  he  did  not  violate  it  in  other 
instances  when  he  had  the  opportunity,  and  was  tempted  to  do 
60 : "  ComtHomccdlfk  v.  Barlow,  97  Mass.,  597.  We,  there- 
fore, find  no  error  in  the  ruling  rejecting  this  testimony. 

Rulhuj  affirmed. 


IHII*I.III*I« 


State  v.  Maiionky. 


.1(    I 


4 


(23  Minn.,  181.) 

LiQiTOH  SBIXTNO:     Unlawful  sale  by  aijents. 

The  defendant,  hc'm'j;  a  licensed  saloon  keeper,  was  charged  with  unlawfully 
selling  iujuor  to  a  habitual  drunkard.  Tlie  only  evidence  airaiiist  him 
was  prod'  of  a  single  unlawful  sale  by  his  elerk.  Ifiltl.  that  tliis  testi- 
mony was  in.sntllcient  to  justify  a  conviction,  tlie  presumption  being  that 
the  clerk  had  authority  only  to  make  lawful  sales. 

GiLFir,r,AN,  C.  J.  The  defendant  was  charged  with  unlawfully 
polling  spiritufuis  liquor  to  an  hiibifual  drunkard.  The  only 
proof  of  the  fact  was,  that  the  jicrson  alleged  to  have  been  an 
liabittial  drunkard,  bought  spirituous  liquor  from  defendant's 
clerk,  there  l)eing  no  evidence  of  the  defendant  being  present, 
nor  of  his  having  given  the  clerk  authority  to  sell  to  this  partic- 
ular person,  or  to  any  hal)itual  drunkard.  The  sale  b^'  the  clerk 
was  made  at  defendant's  saloon,  where  he  ajipears  to  have  carried 
on  the  business  of  selling  liquors,  apparently  under  a  license. 
The  presumption,  from  a  clerk  being  employed  at  the  saloon, 
would  be,  that  he  had  authority  from  the  defendant  to  make 
Buch  sales  as  were  lawful.  A  single  unlawful  sale  by  such  clerk 
would  not  raise  any  presumption  that  his  miujter  had  given  him 


.,      ■'      !■ 


STATE  V.  MAHONEY. 


409 


authority  to  violate  the  law :  Parker  v.  State,  4  Ohio  St.,  563. 
There  is  no  proof  to  connect  defendant  with  the  illegal  act  of 
the  clerk,  and  the  judgment  must  be  reversed,  and  a  new  trial 
ordered. 

The  following  note  is  kindly  contributed  by  the  editor's  law 
partner,  Michael  Firnane,  Esq.,  and  will  be  found  to  contain  all 

the  eases : 


No  IE. — On  the  question  how  far  the  relations  of  principal,  agent,  master 
and  servant,  and  parent  and  child,  are  affected  criminally  by  the  unlawful 
wlliii!;  of  liciiior,  the  decisions  do  not  seem  to  be  uniform. 

Where  a  ckrk  or  agent  unlawfully  sells  liquor  with  the  knowledge  and  con- 
gtnt  of  the  principal,  they  are  both  guilty:  French  v.  People,  3  Parker,  114; 
Schmidt  r.  Sliite,  14  Mo.,  137;  Thompson  v.  State,  5  Humph.,  138. 

Even  wliere  the  defendant  was  only  employed  in  making  change  for  those 
cnifuired  in  the  unlawful  selling:    Johmon  v.  People,  83  111.,  431. 

It  WHS  held  in  Com.  v.  Nichols,  10  Mete,  259,  that  an  unlawful  sale  of 
]i(luor  l)y  the  .servant  or  agent  of  the  owner,  would  he  prima  facie  evidence  of 
the  assent  of  the  latter  to  the  sale. 

Tills  is  a  stronger  statement  of  the  rule  than  the  weight  of  authority  will 
wiiirant.  The  rule  in  criminal  cases  is,  that  the  prosecution  must  prove  the 
defendant's  guilt  beyond  a  reasonalile  doubt.  It  is  for  the  jury,  ind  not  for  the 
court,  to  weigh  the  evidence,  and  to  say  when  proof  sufficient  has  been 
adduced  to  convict.  If  the  court,  as  a  matter  of  law,  can  tell  the  jury  when 
h  prima  facie  case  has  been  made  out,  then  the  court  must  have  the  right  to 
weifrh  and  .scrutinize  the  testimony,  and  draw  inferences  of  fact.  Since  this 
is  tlie  exclusive  province  of  the  jury,  the  expression,  a  jmma  facie  case,  has 
little  or  no  significance  in  criminal  practice. 

The  more  correct  rule  is  laid  down  in  State  v.  Bonny,  39  New  Hamp.,  20G. 
In  tiii.s  case  a  sale  of  liquor,  contrary  to  the  law,  was  proved  at  defendant's 
pulillc  house  by  his  servant.  It  was  held  by  the  court,  that  this  was  a  circum- 
ftiinre  t(!iiillng  to  prove  that  the  defendant  was  engaged  in  the  traffic  of  li([uor 
selling,  and  also  to  establish  the  authority  of  the  servant  to  make  the  sale  in 
question,  leaving  the  jury  to  say  how  strong  this  circumstance  might  bo  in 
conned  Ion  with  other  facts  in  the  case. 

It  seems  that  the  mere  fact  that  the  person  who  sold  the  liquor  was  behind 
the  counter  of  the  saloon  of  the  defendant,  without  showing  some  other  fact 
tending  to  prove  his  authority,  is  not,  of  itself,  sufficient  to  convict:  Antler- 
nonr.  Slate,  37  Ind.,  553. 

Where  a  clerk  or  bar-keeper  in  a  saloon  sells  liquor  unlawfully,  without  the 
knowledge  and  against  the  instructions  of  his  employer,  given  in  good  faith, 
then  th(!  latter  is  not  criminally  responsible  for  the  act:  Lothrope  v.  State,  1 
American  Crlm.  R.,  480,  and  cases  there  cited. 

Where  a  wife  makes  an  unlawful  sale  in  her  husband's  presence,  the  jury 
nmy,  from  this  fart.  Infer  his  guilt:  Ilensly  r.  State,  1  American  Orim.  R., 
4m;  (^<im.  V.  RiywiUh,  114  Mass.,  300;  Com.  v.  Kennedy,  119  Mass.,  211.  And 
it  is  not  necessary  that  he  should  be  in  the  same  room:  Com.  e.  Burk,  11 
<;ray,  437. 


410 


AMERICAN  CRIMINAL  REPORTS. 


.'■ 


To  convict  a  husband  for  the  unlawful  selling,  by  his  wifo.  of  spirituous 
liqiior  in  his  store,  in  his  iibsence,  the  jury  must  be  salisfleil,  beyond  a  leiisun 
able  doubt,  that  her  illegal  act  was  done  by  his  authority;  mere  inoof  that  slie 
was  his  clerk,  or  agent,  is  not  sulHcient:  Seibert  v.  Stah\  40  Ala..  (10;  Con. 
r.  Murphy,  2  Gray,  510. 

If  one  I'.utner  sells  ardent  spirits  in  the  absence  and  without  the  knowl- 
edge or  eonsent  of  the  other,  the  latter  is  not  liable:  Aerec  v.  Com..  V-\  Biisli 
(Ky.),  353. 

Where  the  sale  is  made  to  an  agent,  the  indictment  therefor  may  eliaise  ilie 
sale  to  have  been  made  either  to  the  principal  or  agent:  State  v.  Wiitticorlh, 
35  New  ILmip.,  443. 

But  where  the  agent  informed  the  defendant  that  she  was  acting  as  the 
agent  of  oHier  parties,  the  allegation  of  the  sale  to  the  agent  will  not  be 
sustained:     Com.  r.  Ueml>y,  2  Gray,  508. 

There  are  many  cases  which  hold  that,  on  a  charffe  of  selling  to  linor, 
delivery  of  the  liquor  to  him  is  sufficient  evidence  of  sale,  and  it  is-  'ense 

that  a  person  to  whom  the  liquor  might  lawfully  have  been  so...,  l  the 
minor  for  it,  with  the  money,  and  that  the  defendant  was  so  told  when  he  let 
liie  minor  have  it:    State  v.  Fairfield,  37  Maine,  517,  and  cases  there  cited. 

The  contrary  and  better  doctrine,  and  the  one  supported  by  most  authority, 
is  laid  down  in  a  recent  and  well  considered  case :  Com.  v.  SalleitcilU;  120 
Mass.,  385. 


Schwartz  v.  Commonwealth. 


(37  Gratt.  [Va.],  1025.) 

PEU.IOUY;    Sufiiciency  of  evidfnee. 

On  a  trial  for  perjurj',  evidence  simply  that  the  defendant  had  at  one  time 
sworn  to  one  state  of  facts,  and  afterwards  changed  his  testiniony,  and, 
admitting  that  he  had  sworn  falsely,  testified  in  direct  eoiitraflictiDn  uf 
his  lir.st  statement,  is  not  sulBcieut  to  justify  his  conviction.  The  provi'- 
cutor  must  i)rove  which  of  the  two  statements  is  false,  and  nuist  eorrolio- 
rate  the  true  statement  of  the  prisoner  by  indepeniient  evidence,  i.  e., 
by  evidence  other  than  his  own  statements  and  declarations. 

This  was  an  indictment  for  perjury  in  the  hustings  court  of 
the  city  of  Manchester.  On  the  trial  tlie  jury  found  the  prisoner 
guilty,  and  assessed  his  fine  at  one  dollar,  and  the  court  sentenced 
him  to  imprisonment  in  the  jail  of  the  city  for  one  year.  There 
was  a  number  of  exceptions  taken  by  the  prisoner  to  rulings  of 
the  court;  but  this  court  only  considered  the  question  on  the 
motion  for  a  new  trial,  on  the  ground  that  the  verdict  was  not 
sustained  by  the  evidence.  The  facts  are  set  out  in  the  opinion 
of  Judge  Staples.  On  the  application  of  the  prisoner  this  court 
awarded  him  a  writ  of  error. 


"■^MIm^HIM^W 


SCHWARTZ  /'.  COMMONWEALTH. 


411 


G.   HV,vf,  for  the  prisoner. 

The  Attorney- General,  for  the  commonwealth. 

Stapi-k8,  J.     The  prisoner  was  indicted  for  perjury  in  the 
hustings  court  of  the  city  of  Mancliesfer,  and  was  convicted  and 
sentenced  to  confincinent  in   the  jail  of  the  city  for  one  year. 
After  the  verdict  was  rendered,  he  moved  the  court  to  grant  him 
a  now  trial,  upon  the  ground  that  the  verdict  of  the  jury  was 
contrary  to  the  law  and  tlie  evidence.     His  motion  was  overruled, 
and  the  prisoner  excepted.     His  hill  of  exceptions  contains  all 
the  facts  proved  on  the  trial,  from  whicli   it  app'ears  that  the 
prisoner  was  examined  as  a  witness  upon  the  trial  of  Joseph  Tur- 
ner, hefore  the  mayor  of  Manchester,  upon  the  charge  of  rape, 
and  upon  the  examination  the  prisoner  testified  that  he  had  no 
conversation  or  plot  with  the  said  Joseph  Turner,  hefore  they  left 
Manchester,  to  commit  rape  upon  Pallas  Boyd  ;  that  he  and  Tur- 
ner went  to  the  locality  of  the  alleged  offense  for  the  purpose  of 
getting  flowers,  and  that  he  heard  no  screams  from  the  girl, 
Pallas  Boyd,  whilst  Turner  had  her  in  the  bushes  ;  that  the  com- 
monwealth attorney  asked  that  his  testimony  be  written  down ; 
that  a  pause  in  his  examination  of  two  or  three  minutes  ensued, 
during  which   time  the  prisoner  was  retired   from  the  witness 
stand ;  that  the  prisoner,  during  this  interruption,  stated  to  Mr. 
Fitzgerald,  a  police  officer,  to  Mr.  Kedford,  a  by-stander,  and  to 
the  commonwealth's  attorney,  that  he  had  sworn  falsely  in  his 
testimony  just  given  ;  that  he  had  done  so  to  screen  Turner,  and 
that  when  he  went  back  on  the  stand  he  would  tell  the  truth ; 
that  the  prisoner  was  then  put  on  the  stand  again  as  a  witness, 
no  other  witness  intervening,  and  testified  that  he  and  Turner 
had  had  a  bargain  and  conversation  al)out  the  girl  before  they 
left  Manchester,  and  that  he  did  hear  screams  from  the  girl  wliile 
Turner  had  her  in  the  bushes;  and  thereupon  the  said  mayor 
refused  to  hear  him  further.     It  was  further  proved  that  the 
prisoner  was  not  warned  by  said  mayor  that  he  luul  a  I'ight  to 
ri't'use  to  answer  questions  put  to  him  ;  that  he  had  no  counsel ; 
that  he  appeared  somewhat  confused,  but  not  more  so  than  is 
usual  with  witnesses;  and  that  he  is  in  the  fifteenth  year  of  his 
age.     And  these  were  all  the  facts  proved  on  the  trial. 

The  charge  in  the  indictment  is  of  jierjury  in  the  first  state- 
ment before  the  mayor ;  and  the  evidence  relied  on  to  establish 
tlie  perjury  is  the  contradictory  statement  before  the  same  officer 


.  y>i 


w^^"^ 


I 

m 

r,*  1 
1 

h 


if 


1'^      > 


!  '^1: 


412 


AMKUICAN  CltlMINAL  REPOUTS. 


at  a  subsequent  ]>eriod  of  the  same  exaniiuation.  As  will  be  seen 
from  the  bill  of  exceptions,  this  contradictory  stateinent  was  the 
sole  and  only  proof  adduced  by  the  commonwealth  in  support  of 
the  indictment. 

The  question  we  are  to  determine  is,  was  he  properly  con- 
victed upon  that  evidence  ? 

No  rule  is,  perhaps,  better  settled  than  that  to  authorize  a  con- 
viction of  perjury,  there  must  be  two  witnesses  testifying  to  the 
falsity  of  the  statement,  or  one  witness,   with  strong  corroU- 
orating  circumstances,  of  such  a  character  as  clearly  to  turn  the 
scale  and  overcome  the  oath  of  the  party  and  the  legal  i)ri'siiinp- 
tion  of  his  innocence.     This  rule  is  founded  upon  the  idea  that 
it  is  unsafe  to  convict  in  any  case  where  the  oath  of  one  man 
merely  is  to  be  weighed  against  that  of  another.     Lord  TcMiter- 
den  is  reported  to  have  said  that  corroborating  circunistances  are 
not  suflicient,  but  that  the  contradiction  must  bo  given  by  two 
witnesses.     But  the  rule  is  now  settled  otherwise;  the  coiitirin- 
atory  evidence,  however,  must  be  of  a  strong  character,  and  not 
merely  corroborative  in  slight  jiarticulars.     It  was  at  one  time  held 
that  when  the  same  jjcrson  has,  by  op])osite  oaths,  asserted  and 
denied  the  same  fact,  he  may  be  convicted  on  either;  for  which- 
soever of  them  is  given  in  evidence  to  dispn»ve  the  other,  the 
defendant  cannot  be  heard  to  deny  the  truth  of  that  evidence, 
inasmuch  as  it  came  from  him.      But  this  doctrine  has  been  long 
since  exploded,  and  it  is  now  held  that  the  prosecuting  attorney 
must  elect  which  of  the  two  oaths  he  means  to  rely  upon  as  false, 
and    he  must  prove  the   perjury   in    that   particular  stateiiient. 
Two  early  English  cases  are  sometimes  cited  as  holding  that  tlie 
perjury  may  l»e  established  by  proof  of  the  contradictory  oatli 
merely,  without  other  evidence.     One  t»f  these  is  an  aiioiiynioiis 
case  decided  by  Yates,  J.,  at  the  Lancaster  assizes  in  I  7<1+,  and 
the  ruling  approved  by  Lord  Mansfield.     The  other  is  the  case 
of  /?ex  V,  Knill,  a  short  report  of  which  is  found   in  a  note  in 
I'arnwell  &  Alderson  R.,  page  Kti!).     It  is  shown,  however,  in  'J 
Russell  on  Crimes,  (552,  that  in  each  of  these  cases  there  wen- 
corroborating  circumstances  in  addition  to  the  contradictory  oatli. 
Hut  if  these  cases  even  go  to  the  extent  which  is  claimed  for 
thetn,  they  an;  «»verruled  by  the  later  English  decisions.     And  it 
is  now  held  by  tliose  courts  that  the  defendant's  own  evidence! 
upon  oath  is  not  sutHcient  of  itself  to  disprove  the  evidence  ou 
which  the  perjury  is  assigned. 


,;i 


If 


SCIIWAUTZ  r.  COMMONWEALTH. 


413 


Ls  will  be  seen 
nient  was  the 
in  snpi)ort  of 

properly  con- 

tliorize  a  con- 
tifying  to  the 
trong   corroli- 
y  to  tui-ii  the 
^gal  ])ri>siiiii|,. 
till'  idea  that 
of  one  man 
Lord  Teuter- 
imibtancos  are 
givoii  by  two 
tlic  ('(Hifinii. 
ictcr,  and  not 
Olio  tiiiioheld 
,  asserted  and 
r;  for  wliich- 
le  otber,  the 
liat  evidence, 
las  been  lonir 
ting  attorney 
ipoii  as  false, 
ir  statement, 
ling  that  tiie 
idietorv  oath 
)  anonyuKtus 
ill  IT<!4,  and 
•r  is  the  case 
in  a  note  in 
o\vi!ver,  in  L' 
'  there  were 
lietory  oath, 
elaiined  for 
•IIS.     And  it 
wi\  evideiu't; 
evidence  ou 


In  It^dj/'ni/,  V.  Wliciitldnd,  8  Car.  and  Payne  E.,  238,  Mr. 
Baron  (lurney  held  that  it  was  not  snfficieiit  to  prove  that  the 
defendant  had,  on  two  different  occasions,  given  direct  contra- 
dictory evidence,  although  he  might  liave  willfully  done  so;  but 
that  the  jury  must  be  satisfied,  affirmatively,  that  what  he  swore 
at  the  trial  was  false,  and  that  would  not  be  sufficiently  shown  to 
be  false  by  the  mere  fact  that  the  defendant  had  sworn  contrary 
at  another  time  ;  it  might  be  that  his  evidence  at  the  trial  was 
true,  and  his  dejiositiou  before  the  magistrate  false.  There  must 
he  such  confirmatory  evidence  of  the  defendant's  deposition 
i)efore  the  magistrate  as  proved  that  the  evidence  given  by  the 
defendant  at  the  trial  was  false. 

In  liajlna  v.  Ilwjhes,  1  Car.  and  Kirwan,  519,  Tindall,  C.  J., 
said  :  "■  If  you  merely  prove  the  two  contradictory  statements 
on  oath,  and  leave  it  there,  non  conKtut,  which  statement  is  the 
true  one."  See,  also,  Mary  Ji(rh'i>/i\s  Case,  1  Lewin,  270;  2 
Russell  on  Crimes,  OSl-fioS;  Koscoc's  Crim.  Evidence,  707-768. 

In  the  United  States  there  are  but  few  decisions  bearing  upon 
the  question.  The  writers  on  criminal  law,  however,  lay  down 
the  rnle  in  conformity  with  the  English  cases:  3  Wharton,  sec. 
2275 ;  2  Bish.  Crim.  Law,  sec.  1005  ;  1  Greenl.  Ev.,  259. 

The  only  opposing  case  is  that  of  the  People  v.  Btirden,  9 
Barb.  R.,  469.  There,  Johnson,  J.,  delivering  the  opinion  of 
the  court,  enters  into  an  elaborate  discussion  of  the  whole  sub- 
ject, and  arrives  at  the  following  conclusions:  "That  where  a 
(lefeTulant,  by  a  subsequent  de])osition,  expressly  contradicts  and 
falsifit'>s  a  former  one  uuide  by  him,  and  in  such  subsequent  depo- 
sition expressly  admits  and  alleges  that  such  former  one  was 
intentionally  false  at  the  time  it  was  made,  he  may  be  properly 
arrested  upon  an  indictment  charging  the  first  deposition  to  be 
false,  without  any  other  pr(n)f  than  that  of  the  two  depositions." 
To  maintain  his  position,  the  learned  judge  relies  upon  the  two 
English  cases  already  mentit)ned,  not  adverting,  however,  to  the 
fact  that  there  were  corroborating  circumstances  in  each  of  them. 
The  distinction  he  seeks  to  establish  is  not  recognized  by  any 
adjudicated  case,  or  by  any  writer  on  criminal  law.  This  propo- 
sition is,  that  the  first  oath  of  the  prisoner  must  be  held  to  bo 
false,  because  in  the  second  he  admitted  it  to  be  so.  In  other 
words,  when  the  prisoner  has  made  two  contradictory  statements 
under  oath,  and  in  the  second  he  has  aeknowledge<1  the  inten- 
tional falsity  of  the  first,  that  acknowledgment  is  sufiicient  to 


HTT 


m 


I. 


414 


AMERICAN  CRIMINAL  REPORTS. 


5«  ' 

I- 
.1 


^JS 


Sin 


I , 


establish  the  perjury  of  the  first,  without  further  evident'e.  And 
it  is  asked  why  may  not  the  prisoner  be  convicted  of  perjury 
upon  his  mere  confession,  as  in  otlier  cases. 

It  is  not  denied  that  a  full  judicial  confession  is,  perhaps,  suf- 
ficient to  found  a  conviction  upon  in  any  case.  It  is  substan- 
tially the  same  as  a  plea  of  guilty  to  tlie  indictment.  Ihit  it  is 
denied  that  a  mere  admission,  not  judicial,  of  having  sworn 
falsely,  dispenses  with  all  further  proof  of  the  fact.  As  bufoie 
stated,  when  there  are  two  conflicting  statements,  under  oath, 
the  prisoner  cannot  be  convicted  upon  either,  for  the  reason,  say 
the  judges,  it  is  not  possible  to  tell  which  is  tlie  true  and  wliich  is 
the  false.  In  such  case  it  is  agreed  on  all  hands,  that  strong  con- 
firmatory evidence  is  essential.  It  is  gravely  insisted  that  this 
confirmatory  evidence  is  fully  sujiplied  by  the  prisoner's  acknowl- 
edgment of  the  falsity  of  the  first  statement.  Why  may  not  the 
acknowledgment  itself  be  false  ? 

If  the  second  oath,  deliberately  taken,  is  insufiicient  to  over- 
come the  first,  why  should  a  mere  admission  have  that  elTect  ? 
When  a  witness  deliberately  asserts  a  fact  to  be  true,  as  within 
liis  knowledge,  and  in  a  few  minutes  thereafter  deliberately  ami 
intentionally  asserts  the  very  reverse,  as  within  his  kno\vle(li;o, 
all  ground  of  innocent  mistake  being  excluded,  he  thereby  indi- 
rectly but  unequivocally  affirms  tlie  falsity  of  the  first.  Do  we 
discredit  the  first  any  sooner,  or  believe  the  second  the  nioiv 
readily,  because  the  witness  tells  us  that  one  was  intent imiMlly 
false  and  the  other  true?  We  believe  neither  of  tliem.  AVe 
place  no  confidence  in  either  statement,  from  an  absolute  inal)il- 
ity  to  determine  which  is  true,  or  whether  either  is  true.  If  tliu 
witness  is  afterwards  put  on  his  trial  for  perjury,  our  difiiciiltics 
are  in  no  wise  removed.  We  are  still  in  doubt  whicli  is  the  true 
and  wliich  is  the  false.  It  is  very  true,  that  a  witness  makiiiij 
two  palpably  conflicting  statements,  may  sometimes,  by  his 
demeanc^  satisfy  the  hearer  that  one  is  to  be  credited  ratlier 
than  the  otlier.  IJut  when  these  stateiuents  are  re})oate(l  tu  a 
third  person,  it  is  very  dillicult,  if  not  im|)()SHi])!e,  to  detect  tlio 
false  without  some  aid  from  surrounding  circumstances.  And 
no  mere  asseveration  of  the  witness  will  assist  the  mind  in  arriv- 
ing at  a  just  and  accurate  conclusion.  If  the  witness  is  to  he 
convicted  of  perjury  upon  his  bare  declaration  that  the  first 
statement  is  false,  it  is  not  because  we  believe  his  declaration  is 
necesBarily  true,  but  upon  some  idea  that  it  is  in  the  nature  of  a 


J 


^ 


wrrm 


SCHWARTZ  V.  COMMONWEALTH. 


415 


I' 


confession,  and  therefore  to  be  believed.  A  deliberate  confes- 
sion of  guilt  is  generally  credited,  because  it  is  presumed  to  flow 
from  the  highest  sense  of  guilt.  It  must  be  remembered,  how- 
ever, that  there  are  two  statements  upon  oatli,  and  if  the  pris- 
oner is  to  be  concluded  from  denying  one  to  be  true,  the  same 
reason  would  conclude  him  from  denying  tlie  other,  and  the 
prosecutor  might  select  either  as  the  ground  of  his  proceeding, 
III  this  very  case  the  commonwealth  might  have  elected  to  pro- 
ceed upon  the  second  statement  made  by  the  prisoner.  In  that 
event,  all  will  concede  he  must  have  produced  other  testimony  in 
addition  to  the  contradictory  statement  first  made.  Is  it  possible 
that  the  principle  is  so  reversed,  and  is  of  so  little  value,  that  the 
prisoner  may  be  convicted  of  perjury  upon  the  first  merely 
because,  upon  his  second  examination,  he  admitted  the  first  did 
not  contain  the  truth. 

If  this  be  so,  the  rule  laid  down,  that  in  case  of  two  conflicting 
gtatonients  there  can  be  no  conviction  unless  there  is  corrobor- 
ative evidence,  is  not  of  the  slightest  value.  When  we  speak  of 
corroborative  evidence,  we  do  not  mean  such  as  emanates  from 
the  mouth  of  the  prisoner  himself,  but  evidence  aliwide^  evi- 
dence which  tends  to  show  the  perjury  independently  of  his  own 
declarations. 

The  whole  law  in  reference  to  perjury  is  based  upon  the  idea 
that  wlien  there  is  witness  against  witness,  oath  against  oath, 
there  must  be  other  evidence  to  satisfy  the  mind. 

The  rule  is  thus  laid  down  in  1  Greenleaf,  sec.  265  :  "  If  the 
evidence  in  proof  of  the  crime  of  perjury  consists  of  two  oppos- 
ing statements  of  the  prisoner,  and  nothing  more,  he  cannot  be 
convit^ted.  *  «  «  If  both  the  contradictory  statements  were 
delivered  under  oath,  there  is  nothing  to  show  which  of  them  is 
false,  where  no  evidence  of  the  falsity  is  given."  See,  also, 
Dodge  V.  State,  4  Zabriskio,  455.  This  is  a  sound  rule,  and 
ought  not  to  bo  departed  from  to  meet  particular  cases.  In  this 
connection  it  may  be  mentioned  that  the  decision  in  the  New 
York  case  was  made  by  two  judges,  in  a  court  of  three — Judge 
Sclden  dissenting. 

The  case  now  in  hand  is  a  strong  illustration  of  the  value  of 
the  rule  in  question.  The  prisoner  was  a  youth  of  fifteen, 
charged  before  the  same  magistrate  with  being  implicated  in  the 
crime  of  rape,  and  acquitted  but  a  few  minntiis  before.  Upon 
his  examination  he  was  without  counsel  or  advice,  and  was  not 


v}i\ 


•iv^Bf':  ■     "'^r 


t' 


r\ 


■■      5    , 

1 '■ 

li'l,       1 

1 

■  /-■,. 

416 


AlIEUK^AN  CRIMINAL  REPORTS. 


cautioned  that  he  was  not  bound  to  criminate  lumsclf.  His 
examination  had  not  been  completed,  but  merely  suspended; 
and  during  this  interval  he  is  said  to  havi"  made  to  oiReers  of  tlie 
government  the  statement  upon  which  his  conviction  is  founded. 
Before  he  had  concluded  he  was  stopped  by  the  mayor,  in  tlie 
midst  of  his  narrative,  and  forbade  to  say  more.  What  he  would 
have  further  said  we  cannot  even  conjecture.  So  great  is  the 
abhorrence  of  the  crime  of  rape,  that  the  passions  and  suspicions 
of  men  are  more  easily  excited  than  by  any  other  accusation. 
When,  therefore,  the  prisoner  confessed  his  complicity  in  the 
crime,  ready  credence  was  given  to  the  statement.  If,  in  his 
first  statement  he  had  made  the  same  confession,  and  in  his  suh- 
sequent  examination  denied  it,  it  is  easy  to  see  that  the  perjury 
would  have  been  charged  in  the  last,  and  not  in  the  first.  And 
yet,  without  the  aid  of  other  evidence,  the  one  statement  was 
entitled  to  no  greater  consideration  than  the  other.  Ujion  tlie 
whole,  I  think  the  prisoner  was  improperly  convicted  upon  the 
facts  as  presented  to  the  jury. 

With  respect  to  the  instructions,  my  opinion  is,  that  no  error 
was  cominitted  by  the  court,  either  in  refusing  those  asked  for 
or  in  giving  those  that  were  given.  Upon  the  points  presented 
by  the  second  bill  of  exceptions,  it  is  unnecessary  to  express  any 
opinion,  as  the  question  will  probably  not  again  arise. 

Judgment  reversed. 


Hakims  v.  Pkoi'i.e. 


[I    I 

ii 


'  *.      '  ■'  .  ■ 

y 

■W'lil 

,;>!:  'jM- 

'4'  '''^IflBH' 

VI  ''''^nw 

■  f"'     >>1ilnl 

f  |M! 

|w 

(04  N.  Y.,  148.) 
Pkr.titiit:     Fivp  mnrnhnl  of  Avir  Vurk — Kriilrncr  —  Voviance  —  Vcvdiet, 

Under  the  Now  York  statutes,  the  Arc  niar»lial  of  New  York  city  lias  authority 
to  investigate  and  examine  into  the  oriuin  of  fires,  and  to  take  sworn  evi- 
den(;e  with  relation  tlierelo,  on  Ids  own  motion,  and  false  swearin/x  on  siuih 
an  investigation  is  jierjury.  On  a  prosecution  for  perjury  for  false  testiniony 
^ivitn  on  such  an  examination,  it  is  of  no  c()n.se(pieu(;e  that  no  sworn  com- 
plaint had  been  made  to  him. 

It  was  objected,  in  the  appellate  court,  that  there  was  a  fatal  variance  bctwci-n 
the  indictment  and  tlie  proof,  the  indictment  alleginfj,-  thai  the  respondent 
had  sworn  that  at  the  lime  of  the  tire  he  had  sixty  thousund  cigars  in  tlie 
btiilding,  and  the  proof  showing  tluit  he  had  sworn  that  he  had  sixty  live 
thousand  cigars  in  the  building.  This  objtMtion  was  nol  made 
ttt  the  trial.  /AW,  that  the  variance  was  nol  inuterial;  that  if  it  was,  it 
could  nol  be  regarded,  the  objection  not  having  been  made  ut  the  trial. 


"I'!}, 


HARRIS  V.  PEOPLE. 


417 


There  wore  two  counts  in  the  inclictnicnt,  llie  first  cliaririn,:?  perjury  in  tlie 
oral  testimony  aiven  before  the  uiarsliiil,  and  llie  second  cliarcinir  perjury 
in  swearinj;  to  an  aHidavit  before  tlie  same  otlicer,  containing,  in  subsiancc, 
tlie  same  nuUters  lestilicd  lo  orally.  The  jury  found  the  defendant  nol 
guilty  under  the  first  count,  and  guilty  under  the  .second.  It  was  claimed 
that  the  verdict  was  fatally  inconsistent,  lldd,  that  iuasnuich  as  it 
appeared  that  the  firo  marshal  was  not  present  when  all  the  oral  testimony 
was  given,  there  was  no  inconsistency  in  the  verdict. 

Eabl,  J.  The  plaintiff  in  error  was  convicted  of  perjury  in 
the  general  sessions  of  the  city  and  county  of  New  York,  and 
was  sentenced  to  ten  years'  imprisonment  in  the  state  prison. 
The  perjury  is  alleged,  in  the  indictment,  to  have  been  com- 
mitted on  the  13th  day  of  Septeml)er,  1873,  before  George  H. 
Sheldon,  fire  marshal  of  the  city,  who  was,  at  the  time,  investi- 
ffiitiiig  tlie  cause,  origin  and  circumstances  of  a  fire  which 
occurred  on  the  5th  day  of  September,  1873,  in  a  building 
occiii)ied  by  Harris  and  his  partner  as  a  tobacco  manufactory. 
Upon  the  investigation,  Harris  swore  that  at  the  time  of  the  lire 
he  was  not  in  the  city  of  New  York,  but  that  he  was  in  the  city 
of  Troy.  Ill'  also  swore  that,  at  the  time  of  the  fire,  there  was 
in  the  building  a  stock,  belonging  to  him  and  his  copartner,  con- 
sisting of  05, (KM)  cigars,  185, ()()()  cigarettes,  400  pounds  of 
Havana  tobacco,  of  the  value  of  one  dollar  and  fifty  cents  per 
pound ;  645  pounds  of  Virginia  tobacco,  of  the  value  of  sixty- 
five  cents  per  pound,  and  that  he  and  his  partner  sustained  a  loss 
by  the  fire  of  between  §5,000  and  $0,000,  The  facts  thus  sworn 
to  were  alleged  in  the  indictment  to  have  been  false,  and  evidence 
was  given  uj)on  the  trial  tending  to  show  that  they  were  all  false. 

It  was  claimed  upon  the  trial,  on  behalf  of  the  prisoner,  that 
the  fire  marshal  had  no  power  or  authority  to  administer  an  oath 
to  Harris,  and  this  is  the  first  ground  of  error  alleged  here.  To 
show  that  it  has  no  foundation,  little  more  is  needed  than  to 
hriiig  together  the  statutes  relating  to  the  powers  and  duties  of 
the  fire  marshal. 

It  was  provided,  by  section  one,  chapter  332,  of  the  laws  of 
1852,  as  amended  by  section  36,  chapter  579,  of  the  laws  of  1857, 
that  the  generid  superindendent  of  police  of  the  city  of  Kew 
York  was  "authorized  and  reipiired  to  make  an  investigtition 
into  the  origin  of  every  fire  occurring  in  said  city,"  and  for  that 
purpose  he  was  invested  with  the  same  powers  and  jurisdiction 
as  were  possessed  by  the  j)olico  justices  of  the  city.  The  police 
justices  had  jurisdiction,  upon  complaint  made  to  them,  to  siib- 
Vou  II.- a? 


It;  '     •'"''^'Pf 

t'    \v 

t 


:   ■ 

'    '! 

418 


AMERICAN  CRIMINAL  KEPORTS. 


poena  and  swear  witnesses  for  the  purpose  of  ascertaining  wliether 
any  crime  had  been  committed  (2  R.  S.,  707).     In  1S08  (cluip. 
563)  an  act  was  passed  creating  the  "office  of  metropolitan  tiiL' 
marshal,  and  prescribing  its  powers  and  duties."     lie  wiis  to  be 
appointed  by  the  board  of  metropolitan  police.     And  section  two 
made  it  his  duty  "  to  examine  into  the  cause,  circumstances  and 
origin  of  fires  by  which  any  building,  vessels,  veliicles,  or  any 
valuable  personal  property  shall  be  accidentally  or  unlawfully 
burned,  destroyed,  lost  or  damaged,  wholly  or  partially,  and  to 
especially  inquire  and  examine  whether  the  fire  was  the  result  of 
carelessness  or  the  act  of  an  incendiary."     lie  was  directed  to 
take  the  testimony,  on  oath,  of  all  persons  supposed  to  be  cog- 
nizant of  any  facts,  or  to  have  means  of  knowledge  in  relation 
to  the  matter  to  be  examined  and  inquired  into,  and  to  cause  the 
same  to  be  reduced  to  writing  and  verified.   By  section  three  he  was 
empowered  to  issue  a  notice,  in  the  nature  of  a  subpoena,  to  com- 
pel  the  attendance  of  any  person,  as  a  witness,  before  him  to 
testify  in  relation  to   any  matter   the   subject  of   iiKpiiry  and 
investigation  by  him.      lie  was  authorized  to  administer  oaths 
to  the  witnesses,  and  it  was  provided  that  false  swearing  in  any 
matter  or  proceeding  before  him,  should   be  deemed   iierjurv. 
and  punishable  as  such.     The  next  statute  upoji  the  subject  wa:* 
passed  in  1S70  (chap.  383,  sec.  21),  and  sim])Iy  jtrovided  that  tlio 
board  of  police  of  the  city  of  New  York  should  have  the  power 
to  appoint  a  fire  marshal,  who  should  have  the  like  powers  and 
perform  the  like  duties  as  those  provided  by  the  statute  of  iStls. 
above  referred  to.     In  1871,  by  section  four,  cJiapter  r)84,  it  was 
provided  that  all  the  provisions  of  the  statute  of  18(18,  "creating 
the   office  of    metropolitan   fire   marshal,   and   prescribing  the 
powers  and  duties  thereof,  shall  be  and  remain  in  force  as  apidi- 
cable,"  and  that,  "for  the  purpose  of  investigating  the  origin  of 
fires,  incendiary  or  otherwise,  and  bringing  to  punishment  the 
parties  guilty  of  arson,  the  said  tire  marshal  is  hereby  invested 
with  the  same  powers  and  jurisdiction  as  were  heretofore  con- 
ferred upon  the  superintendent  of  police  of  the  city  of  Kow 
York  in  relation  thereto,"  under  the  statute  of  1852,  as  amended 
in  1857,  above  referred  to.     By  section  7<>,  chai)ter  335,  of  the 
laws  of  1873,  an  act  to  re-organize  the  local  government  of  the 
city    of   New  York,   it   was  provided    as    follows:      "Aiiotiier 
bureau  shall  be  charged  with  the  itivestigation  of  the  origin  and 
cause  of  tires,  the  principal  officer  of  which  shall  be  called  lire 


iM 


ir^ 


HARRIS  V.  PEOPLE. 


419 


marshal,  who  shall  possess  all  the  powers  and  duties  now  pos- 
sessed and  ])erforined  by  the  fire  marshal  appointed  pursuant  to 
chapter  383,  laws  of  1870,  and  chapter  584,  laws  of  1871,  and 
the  acts  amendatory  or  supplementary  thereof." 

The  claim  made  on  behalf  of  the  plaintiff  in  error  is,  that 
under  these  statutes  the  fire  marshal  had  no  authority  to  institute 
an  investigation  and  inquiry  into  the  circumstances  of  a  fire, 
without  a  complaint  is  first  made  to  him.     It  is  entirely  clear, 
however,  from  the  language  used,  as  well  as  from  a  consideration 
of  the  purposes  of  the  statutes,  that  a  complaint  is  not  necessary 
to  call  into  action  the  powers  of  the  fire  marshal.     He  has  all  the 
authority  conferred  by  the  statute  of  1852,  as  amended  in  1857, 
upon  the  superintendent  of  police.     That  statute  conferred  the 
autliority  and  imposed  the  duty  to  investigate.     No  complaint 
was  necessary,  but  in  conducting  the  investigation  the  superin- 
tendent was  invested  with  the  power  and  jurisdiction  of  police 
justices,  and  they  had  authoritj'  to  subpoena  witnesses  and  swear 
them.     He  also  had  the  authority  conferred  by  the  statute  of 
1868,  which  made  it  his  duty  to  institute  the  investigation,  and 
did  not  impose,  as  a  preliminary,  any  complaint.     These  statutes 
were  a  portion  of  the  police  regulations  for  the  city.     Their 
design  was  to  protect  the  city  against  fires;  both  accidental  and 
incendiary,  and   an  ofticer  was  clothed  with  ample  powers  to 
accomplish  the  purpose,  and  the  only  thing  required  to  call  into 
exercise  his  jurisdiction  was  a  fire  within  the  city  limits. 
•    It  is  also  claimed  that  there  was  a  fatal  variance  between  the 
indictment  and  the  proof,  in  that  the  indictment  alleges  that 
Harris  swore   before  the  fire  marshal  tliat  there  were  60,000 
cigars  in  the  ])uilding  at  the  time  of  the  tire,  whereas  the  proof 
showed  that  he  swore  that  there  were  65,000,     This  objection 
was  in  no  form  made  at  the  trial,  and  therefore  cannot  avail  here. 
If  it  had  been  made,  the  evidence  as  to  that  item  could  have  been 
excluded  or  waived,  or  the  judge  could  have  instructed  the  jury 
to  disregard   the  evidence,   and  there  would  still   have  been 
enough  to  uphold  a  conviction.     The  variance  was  as  to  one  of  a 
number  of  distinct  items,  as  to  which  Harris  was  charged  with 
ewearing  falsely,  and  if  the  jury  had  found  that  he  swore  fulsuly 
as  to  the  other  items,  or  as  to  any  one  of  them,  a  verdict  of 
guilty  would  have  been  proper.     Where  an  indictment  cliai'ges 
tliat  the  prisoner  has  stolen  a  number  of  articles,  or  has  intHctcd 
a  number  of  blows,  or  has  obtained  goods  by  u  number  of  false 


fFT 


AMERICAN  CRIMINAL  RKl'ORTS. 


W'' 


3-%   '  . 


.5       3 
li} 


'111 


preteTises,  or  has  sworn  falsely  in  an  aflSdavit  as  to  several  fiicts 
it  is  not  necessary  to  prove  .ill  that  is  charged.  It  is  sufficient  to 
prove  enough  to  make  out  the  offense  charged :  3  Russell  on 
Crimes  (4th  Loud,  ed.),  105 ;  lieg.  v.  Rho(l,\s,  2  Lord  Ray.,  880 ; 
3  8tarkiu's  Ev.,  800;  Tomlinson.s  Case,  4  City  Hall  Rue,  125' 
Roscoe's  Cr.  Ev.  (6th  Am.  ed.),  763.  We  are  also  of  opinion 
that  the  variance  was  not  material,  and  could  be  disroganletl. 
And,  for  the  purpose  of  testing  this  question,  we  must  treat  the 
case  as  if  the  indictment  contained  no  other  charge  of  perjury. 
The  strictness  of  the  ancient  rule  as  to  variance  between  tlie 
proof  and  the  indictment  has  been  much  relaxed  in  modern 
times.  Variances  in  making  his  defense,  and  because  they  imiv 
expose  him  to  the  danger  of  being  again  })ut  in  jeopardy  for  the 
same  offense.  The  variance  could  present  no  such  difficulty. 
The  indictment  charged  him  with  swearing  falsely  that  he  lnul 
60,000  cigars  in  the  building  when,  in  fact,  he  swore  that  he  had 
65,000  there — a  mistake  in  his  favor.  The  falsehood  did  n^t 
consist  so  much  in  swearing  to  tlie  precise  number,  for  as  to 
tliat  he  could  be  innocently  mistaken,  and  preci.seness  was  not 
important,  but  it  consisted  in  swearing  to  a  much  larger  nurnlier 
than  he  had.  If  the  indictirient  had  chary-ed  him  with  sweariiiir 
falsely  that  there  were  65,000,  and  he  had  provc<l  that  he  actually 
had  in  his  building  60,000,  his  oath  would,  considering  the  pur- 
pose for  which  and  the  circumstances  under  which  it  was  given, 
have  i)eeii  regarded  as  substantially  true,  and  the  variance  imma- 
terial :     Peoitle  v.   Wanw/',  5  Wend.,  271. 

There  were  two  counts  in  the  indictment,  the  first  charging 
perjury  in  the  oral  testimony  given  before  the  fire  marshal,  and 
the  second  charging  perjury  in  swearing  to  an  affidavit  befmo 
the  same  officer,  containing  in  substance  the  same  nuitters  testi- 
tied  to  orally.  The  jury  found  the  prisoner  not  guilty  under  the 
first  count,  aiul  guilty  under  the  second  count.  It  is  now  claimed 
that  the  verdict  was  repugnant,  inconsistent  and  void ;  that  tho 
prisoner  could  not  be  innocent  under  tlie  first  count  and  guilty 
under  tho  second.  The  facts  do  not  warrant  the  claim  made. 
The  two  counts  were  not  alike.  The  first  was  for  oral  false 
swearing,  and  the  second  was  for  false  swearing  in  the  affidavit. 
The  fire  marshal  wjis  not  present  when  the  oral  evidence  was  all 
given.  The  material  facts  of  the  oral  evidence  nuiy  have  been 
taken  by  his  assistant  in  his  absence;  and  hence  the  jury  may 
have  well  found  that,  m  to  the  oral  evidence,  the  false  swearing 


lii' 


DANIEL  V.  STATE  OP  GEORGIA. 


421 


charged  did  not  take  place  before  the  tire  inarslial,  and  hence 
that  the  prisoner  waa  not  guilty  as  to  that ;  and  hence  there  is  no 
repugnancy  or  inconsistency  in  the  verdict  of  guilty  under  the 
second  count  based  upon  the  affidavit. 

Having  thus  carefully  considered  all  the  objections  to  which 
our  attention  has  been  called,  we  have  reached  the  conclusion 
that  the  conviction  must  be  affirmed. 

All  concur. 

Judgment  affirmed. 


Daniel  v.  The  State  op  Georgia. 

(56  Ga.,  653.) 

Practice:    Separation  of  jurff. 

TLiit  a  juror,  after  being  clmrgcd  with  a  criminal  case,  was  allowed  to  separ- 
ate! from  the  jury,  is  ground  of  new  trial,  unless  it  be  aiBrmatively  shown 
that  he  had  no  communication  with  any  one  upon  the  subject  of  the  trial, 
eitlier  directly,  by  conversation,  or  indirectly,  by  overhearing  the  obser- 
vations of  otliers. 

Waknkk,  Cn.  J.  The  defendant  was  indicted  for  the  offense 
of  innrder,  and  on  the  trial  therefor  the  jury  returned  a  verdict 
of  guilty,  with  a  rccoinniendation  to  the  mercy  of  the  court.  A 
motion  was  made  by  the  defendant  for  a  new  trial,  on  the  sev- 
eral grounds  therein  sot  forth,  which  was  overruled  by  the  court, 
and  the  defendant  e.\('e[)ted.  It  appears,  from  the  evidence  in 
the  rt't'ord,  that  the  defendant  went  to  a  house  where  the  deceased 
was  (not  his  own  house),  and  asked  him  "  what  lies  he  had  been 
telling  on  him ; "  deceased  replied,  "  Go  away,  Josh,  I  don't 
care  if  you  never  speak  to  me  again."  They  continued  talking, 
giving  each  other  the  lie,  when  deceased  said  he  would  not 
quarrel  with  him,  but  was  going  to  attend  to  his  own  business, 
and  went  out  of  the  house;  defendant  followed  him,  and 
picked  up  a  piece  of  an  old  stump  laying  near  the  door,  about 
three  feet  long;  deceased  went  to  the  edge  of  the  yard,  and 
picked  up  an  ax  lying  there,  the  ax  resting  on  the  ground  ;  in 
that  position  they  continued  giving  each  other  the  lie,  when 
decc'UKod  said,  "  I  ain't  telling  no  He;"  defendant  told  him  if  he 
eaid  that  again  he  would  kill  him,  appeared  to  get  mad,  jumped 
at  deceased  and  wrung  the  ax  out  of  his  hands,  and  told  him. 


■■1;     "      ^'  ■■'*''';t 


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422 


AMERICAN  CRDIINAL  REPORTS. 


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God  damn  him,  he  would  kill  him,  and  struck  him  on  the  head 
with  the  ax,  which  blow  killed  him,  breaking  his  skull ;  struck 
but  the  one  blow. 

One  of  the  grounds  of  the  motion  for  a  new  trial  is,  that  one 
of  the  jurors,  after  being  charged  with  the  case,  was  allowed  to 
separate  from  the  jury  without  being  accompanied  by  any  officer, 
and  to  go  across  the  street  to  the  store-house  of  Jones,  in  the 
town  of  Warrenton,  one  hundred  yards  trom  the  court-house, 
and  retrrn  ;  that  there  was  a  crowd  of  persons  there  through 
which  the  juror  was  obliged  to  pass,  and  did  pass,  in  going  to 
and  returning  from  said  store-house.  The  fact  of  the  separation 
of  the  juror,  as  alleged,  is  not  denied,  but  he  states  in  his  affida- 
vit that  he  went  to  the  store-house  to  get  his  overcoat ;  that  he 
did  not  speak  to  any  one,  and  that  no  one  spoke  to  him  about 
said  case ;  but  the  juror  fails  to  state  in  his  afhdavit  that  he  did 
not  hear  any  person  or  persons,  in  the  crowd  through  which  he 
passed,  speaking  or  expressing  their  opinions  about  the  case. 
One  of  the  reasons  why  the  law  requires  jurors  to  be  kept 
together,  separate  from  the  crowd  of  people  who  may  have  heard 
the  trial,  as  well  as  others,  is,  that  they  may  not  be  influenced  in 
rendering  their  verdict  by  the  expression  of  the  opinion  of  others, 
or  by  popular  clamor.  When  the  law  was  violated  by  the  mis- 
conduct of  the  juror,  the  legal  presumption  was  that  the  defend- 
ant was  injured,  and  it  was  incumbent  on  the  state  to  have 
rebutted  that  legal  presumption,  not  only  by  evidence  that  the 
juror  did  not  speak  to  any  one  himself,  nor  did  any  one  speak  to 
him  about  the  case,  but  that  he  did  not  hear  any  one  in  the 
crowd  through  which  he  {xissed,  express  any  opinion  in  relation 
to  the  case.  Jurors  are  as  liable,  in  our  day,  to  be  inHueiiced  and 
controlled  by  public  opinion  as  Pilate  was  in  his  day,  wlieii,  by 
the  clamor  of  the  multitude,  he  consented  to  deliver  up  our  Saviour 
to  be  crucified.  The  policy  of  the  law  is  to  protect  jurors  from 
all  such  influences  and  temptations,  in  the  trial  of  criminal  cases, 
as  well  as  defendants  who  may  be  injured  thereby. 

In  view  of  the  misconduct  of  the  juror  Ricketson,  and  other 
irregularities  complained  of  at  the  trial,  we  reverse  the  judgment 
of  the  court  below,  and  order  a  new  trial. 

Judgment  reversed. 


m 


STATE  V.  BKOWX  423 


State  v.  Brown. 

(15  Kas.,  400.) 

Practice:    Impartial  jury. 

On  a  trial  for  homicide,  a  juror  who  had  formed  or  expressed  an  opinion  that 
the  deceased  was  killed  by  the  prisoner,  nothing  else  appearing,  is  incom- 
petent to  sit  as  a  juror,  and,  on  a  challenge  for  cause,  should  he  rejected. 

Where  the  court  has  improperly  overruled  a  challenge  for  cause,  the  error  is 
ground  for  reversal,  notwithstanding  the  juror  is  afterwards  challenged 
peremptorily  by  the  defendant,  if  the  defendant  exhausts  his  peremptory 
challenges,  because  the  defendant  has  tlierehy  been  deprived  of  his  right 
to  peremptorily  challenge  one  of  the  jurors  who  sat  upon  the  trial. 

Valkntine,  J.  The  defendant,  Harvey  Brown,  was  charged 
with  killing  and  murdering  one  William  H.  Phillips.  The 
charge  was  murder  in  the  lirst  degree.  The  defendant  was 
tried  and  found  guilty  of  murder  in  the  second  degree.  After 
lie  was  sentenced  he  brought  the  case  to  this  court  on  appeal. 
ISevt'ral  errors  are  assigned,  but  it  will  not  be  necessary  to  con- 
(iidcr  many  of  them.  Among  other  assignments  of  error,  the 
defendant  claims  that  the  court  below  erred  in  impaneling  the 
jury.  The  record  shows  that,  "  upon  the  examination  of  said 
jurors,  touching  their  competency  to  serve  as  jurors  in  said 
cause,  L.  S.  Howe,  one  of  said  jurors,  answered,  in  ret<])onse  to 
the  question  whether  lie  had  formed  or  expressed  an  opinion 
upon  any  material  fact  in  the  case,  that  he  had  formed  the 
(ipiuioii  that  l'hillii>s,  the  deceased,  was  killed,  and  that  Brown, 
the  defendant,  killed  him."  And,  again,  "  the  question  was 
asked  said  juror,  in  the  following  manner  and  form  :  "  Have 
you  formed  or  expressed  an  opinion  that  Phillips,  the  deceased, 
x\as  killed,  and  that  Brown,  the  prisoner,  killed  him?  and  the 
buid  juror  answered  that  he  had  so  formed  an  opinion."  Said 
juror  was  then  challenged  for  cause,  but  the  court  overruled  the 
challenge.  Afterward,  however,  the  defendant  challenged  said 
juror  peremptorily,  aud  he  was  discharged  on  the  peremptory 
challenge.  The  defendant  exhausted  all  his  peremptory 
challenges. 

The  foregoing  is  all  that  the  record  shows  concerning  said 
juror.  Section  ten  of  the  bill  of  rights  of  the  constitution,  pro- 
vides that  a  defendant  in  a  criminal  action  shall  have  the  right 
to  be  tried  "by  an  impartial   jury;"  and,  section  205  of  the 


m 


4S4 


AMERICAN  CUI3I1NAL  REPORTS. 


Mi 


'V 
p. 


ll 


Criminal  Code  (Gen.  Stat,  853),  provides  that  "it  sliall  be  a 
good   cause  of  challenge  to  a  juror  that  he  has  formed  or 
expressed  an  opinion  on  the  issue,  or  any  material  fact  to  be 
tried."    We  think  the  court  below  erred.    The  question,  whether 
the  defendant  killed  Phillips,  was  a  "  material  fact  to  be  tried." 
It  was,  indeed,  one  of  the  principal  facts  in  this  case.     The  ques- 
tion of  the  competency  of  jurors,  as  involved  in  this  case,  dif- 
fers  widely   from  the   question  concerning  the  same  subject, 
decided  in  the  case  of  The  State  v.  Medllcott,   9   Kas.,  257. 
There  is  nothing  in  this  case  that  tends  to  show  that  the  opinion 
of  the  juror  amounted  only  to  an  impression,  slight  or  other- 
wise.    There  is  nothing  that  tends  to  show  that  the  opinion  was 
founded  merely  upon  newspaper  articles  or  rumor.     And  there 
is  nothing  which  tends  to  show  that  the  opinion  was  hypotlieti- 
cal,  conditional,  indefinite  or  uncertain.     It  would  seem,  from 
the  record,  that  the  opinion  was  in  fact  an  opinion,  and  that  it 
was  definite  and  absolute.     We  have  no  disposition  to  disturl)  iu 
the  least  the  rule  enunciated  by  the  court  in  the  Medlicott  case. 
But  this  case  ilifTers  so  materially  from  that  case,  that  while  this 
court  held  that  there  was  no  error  in  impaneling  the  jury  in 
that  case,  we  must  hold  that  there  was  error  in  impaneling  the 
jury  in  this  case.     And,  as  the  defendant  exhausted  all  his  per- 
emptory challenges,  we  must  hold  that  the  error  was  material, 
altliough  said  juror  was  finally  discharged  by  the  court  on  nnr>  of 
the  defendant's  perem])tory  challenges. 

The  judgment  of   the  court   below  is  revn      '     .ad   cause 
remanded  for  a  new  trial. 

.A.ii  the  justices  concurring. 


Carroll  v.  State. 
(5  Neb.,  31.) 


Practice:    Impartial  juror —  Co-respondent  as  witness  fcr  the  state —  Vie.u> 
sfiould  be  in  pretence  of  pnsoner. 


!---:  ,='- 


Thf>  mere  fact  that  a  juror  swears  tliat  he  thinks  the  cvirlcnce  might  remove 
tlie  ojiinion  he  has  formed  in  answer  to  a  (lueslion  whether  lie  could  ren- 
der an  impartial  verdict,  does  not  make  ium  a  competent  juror.  ITt' 
must  swear  unequivocally  and  positively,  and  the  court  must  he  able  to 
determine  him  to  he  competent.  On  the  fa(!ts  of  this  case,  a  juror  who 
was  received  was  held  to  be  clearly  incompetent.  (See  note  to  Ei'win  v. 
State,  ante,  262.) 


CARROLL  V.  STATE. 


425 


Where  two  jointly  indicted  are  awarded  separate  trials,  eitLer  is  a  competent 
witness  for  the  state  against  the  other,  before  he  has  been  convicted  or 
acquitted,  and  it  is  not  necessary  to  enter  a  rwUe  prosequi  to  render  him 
competent. 

Where  the  jury  are  taken  by  order  of  the  court  to  view  the  locality  of  the 
crime,  the  prisoner  has  a  right  to  accompany  them,  and  should  be  taken 
with  them,  unless  he  chouses  to  waive  his  privilege,  (tiee  Benton  v. 
State,  30  Ark.,  328,  to  the  same  effect.) 

Maxwell,  J.  I.  The  first  error  assigned  is,  that  the  conrt 
erred  in  overruling  the  prisoner's  challenge  to  the  juror,  L.  J. 
Holland.     This  juror  on  his  voir  dire  testified  as  follows : 

Q.  You  say  you  have  heard  the  matter  talked  of  on  the  streets, 
and  around  through  the  country  ? 

A.  No,  sir ;  I  heard  it  from  my  neighbors,  mostly. 

Q.  Did  you  read  the  reports  of  it  as  published  in  the  Nebraska 
Oiti/  Pri'^s  and  News  f 

A.  Tt'-s,  sir, 

Q.  You  read  the  evidence  then  1 

A.  Yt's,  sir. 

Q.  From  what  you  have  heard  and  read  in  these  papers,  have 
you  fornied  an  opinion  as  to  the  guilt  or  innocence  of  these 
parties  ? 

A.  To  a  certain  extent,  I  think  I  did, 

Q.  From  the  opinion  that  you  have  formed  from  what  you 
Lave  heard  and  read  in  the  papers,  you  might  possibly  lean  a 
Httle  one  way  or  the  other  ? 

A.  I  don't  think  that  I  would. 

Q.  If  yon  did  not  hear  any  othfir  testimony  than  what  you 
have  read  and  heard,  do  you  think  your  opinion  would  be 
cliaiiged  any? 

A.  I  don't  think  it  would. 

Q.  Do  you  think  that  opinion  you  have  formed  would  prevent 
you  From  rendering  a  fair  and  impartial  verdict  after  hearing  the 
law  and  the  evidence  ? 

A.  I  think  the  evidence  might  remove  it. 

Whereupon  the  prisoner's  counsel  challenged  |,the  juror  for 
cause,  which  the  court  overruled,  to  which  the  prisoner  by  his 
coinisel  excepted. 

Section  four  hundred  and  sixty-eight  of  the  Criminal  Code  pro- 
vides that,  "  if  a  juror  shall  state  that  he  iias  formed  or  ex]iivssed 
an  opinion  as  to  the  guilt  or  innocence  of  the  a''cnscd,  the  court 
ehall  thereu[)un  proceed  to  examine,  on  oath,  such  jnror  as  to  the 


m 


426 


AMERICAN  CUIJIINAL  REPORTS. 


m: 


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J 


ill 


ground  of  such  opinion;  and  if  it  shall  appear  to  have  been 
founded  upon   reading  newspaper  statements,  communications 
comments,  or  reports,  or  upon  rumor,  or  hearsay,  and  not  uj)oii  con- 
versations with  witnesses  of  the  transactions,  or  reading  re])()rts  of 
tlieir  testimony,  or  hearing  them  testify,  and  the  juror  shall  sav 
on  oatli,  that  he  feels  able,  notwithstanding  such  opinion,  to  ren- 
der an  impartial  verdict  upon  the  law  and  the  evidence,  the 
court,  if  satisfied  that  said  juror  is  impartial,  and  will  render  suca 
verdict,  may,  in  its  discretion,  admit  such  juror  as  compi'tciit  to 
serve  in  such  case."     This  court,  in  construing  this  section  of  the 
statute  in  the  case  of  Curry  v.  The  /State,  4  Neb.,  54S,  say : 
"  Before  the  court  can  exercise  any  discretion  as  to  his  retenticjn 
upon  the  panel,  it  must  be  shown   by  an  examinotion  of  the 
juror,  on  his  oath,  not  only  that  his  opinion  was  formed  solelv 
in  the  manner  stated  in  this  proviso,  but,  in  addition  to  tliii*,  the 
jurt)r  must  swear  unequivocally  that  he  feels  able,  notwithstand- 
ing such  opinion,  to  render  an  impartial  verdii't   u])un  the  law 
and  the  evidence."     In  Palmer  v.  People,  4  Neb.,  75,  it  is  heM 
that  the  "word  'opinion'  in  this  connection  is  fretpu'iitly  used  to 
denote  a  mere  impression,  and  appears  to  have  been  hu  dsed  in 
section  408  of  the  Criminal  Code,  above  qufitcd.     It  is  the  ri^ht 
of  a  party  aceUiJcd  of  crime  to  be  tried  by  a  fair,  unbiased  jtivv, 
so  that  their  minds  may  be  open  to  those  inij)n'ssi()ns  which  the 
testimony  and  the  law  of  the  case  ought  to  make."     Our  ooii>ti- 
tntion  guaranties  every  one  charged  with  crime  a  speedy  trial 
befi)re  a  fair  and  impartial  jury.     In  Cnrry  v.  The  State,  supra. 
551,  the  court  say:     '*IIow  would  it  be  possible  to  rea<di  the 
conclusion  that  a  juror,  who,  without  any  qualification  whatever, 
declares  that  he  has  a  fixed  and  abiding  conviction  of  the  pri.s- 
oner's  guilt  which  would  require  evidence  to  remove,  can  be  fair 
and  impartial  between  the  state  and  the  accused?     Would  it  nut 
rather  be  an  abuse  of  judicial  discretion  to  so  hold  ?     It  is  very 
clear  that  a  i)anel  composed  of  such  jurors  would  fall  far  short 
of  fullilling  the  legal  reijuirenuMit  of  a  fair  and  impartial  jury,  to 
which  an  accused  person  is  entitled." 

In  the  case  at  bar,  the  juror  Holland  was  clearly  incompetent 
to  sit  as  a  juror  in  tlie  case,  and  for  this  reason  the  judgment  of 
the  district  court  must  be  reversed. 

II.  Fraidv  ^[cKIroy  was  a  competent  witness  in  this  case.  lu 
Bnnvn  v.  The  State,  18  Ohio  State,  509,  the  court  say:  "The 
next  question  is:  Was  Ketchum  a  competent  witness  for  the 


STATE  V.  IIORNEMAN. 


427 


liave  been 
nunicatioiis, 
ot  upon  coil- 
'K  reports  of 
or  sliall  sav, 
>iou,  to  ron- 
ideiiee,  the 
render  such 

OTIlJH'tL'Ut  to 

ctioii  of  the 
54S,  say: 

lis  retention 

tion  of  .the 

mixed  solely 
'  to  this,  the 
otwitlistand- 

H»ii  the  luw 
r."J,  it  is  heM 
'iitly  nscM]  t.i 
M  su  (isi'd  in 

i.s  tlie  riiiht 
il)i:ise(|  jnry, 
if^  wliii'h  the 

Our  consti- 
speedy  trial 
Statt\  xnpnt, 
o  roach  the 
m  whatever. 
of  the  pri.- 
.  can  he  fair 
l^ould  it  not 
It  is  Very 
ill  far  short 
•tiul  jury,  to 

ncoinpetent 
ud^fiuent  of 

8  case.  Id 
ny :  "  The 
C6B  for  the 


6tate.  standing  as  he  did  .jointly  indicted  with  Brown '{  The 
authorities  already  cited  answer  this  question  in  ihe  affirmative. 
Where  separate  trials  are  awarded  to  parties  jointly  indicted,  each 
is  a  competent  witness  for  the  state,  upon  the  trial  of  the  other, 
without  being  first  acquitted  or  convicted,  and  without  a  voile 
prosequi  being  first  entered  upon  the  indictment.  The  objec- 
tion goes  to  liis  credit,  and  not  to  his  competency.  This  has 
been  the  settled  law  of  the  state  for  years;  and  surely  the  present 
is  no  time  to  change  it,  when  the  manifest  tendency  of  our  legis- 
lation is  to  narrow,  instead  of  enlarging,  the  grounds  of  objection 
to  the  competency  of  witnesses." 

III.  Our  statute  provides  that,  "  whenever,  in  the  opinion  of 
the  court,  it  is  proper  for  the  jury  to  have  a  view  of  the  place  in 
which  any  material  fact  may  have  occurred,  it  may  order  them 
to  be  conducted  in  a  body,  under  the  charge  of  the  sheriff,  to  the 
place,  which  shall  be  shown  to  them  by  some  person  appointed 
by  the  court."  This  should  be  done  in  the  presence  of  the  pris- 
oner, unless  he  decline  the  privilege,  as  he  is  entitled  to  have  all 
the  evidence  received  by  the  jury  taken  in  his  presence. 

We  see  no  error  in  the  instructions  of  which  the  prisoner  can 
complain.  The  judgment  of  the  district  court  is  reversed  and 
the  cause  remauded  for  further  proceedings. 

Eevei'sed  and  remanded. 


State  v.  IIokneman. 
(16  Kas.,  453.) 
Practicr:    Former  jeopardy  —  Appeal  only  lies  after  jlnal  judfjment. 

An  nppi'nl  cannot  be  taken  from  an  interlocutory  judgment  sustnininp  a 
di'inurrrr  to  a  plt'ii  of  rornuT  aciniittal.  Appeal  only  lies  after  a  trial 
\\\um  the  merit.s  ami  lliial  jiKfuiucnt. 

To  an  indictment  for  shootiug  witli  iulunt  to  kill  a  human  being,  the  respon- 
dent pleaded  former  acquittal.  It  appeared,  from  the  plea,  that  he  hud 
been  formerly  prosecuted  for  maliciously  shooting  and  woimding  a  horse, 
on  which  charge  he  had  been  ac(iuitted,  and  the  plea  alleged  the  identity 
of  the  two  ofTensea.  llrld,  that  a  (hMniirrer  to  this  pica  was  properly 
8\islaincd.  The  two  olTcnscs  arc  csscniiidly  dilTcrent,  ami  could  not  be 
legally  identi<'al,  althougli  l)olh  otTciiscs  niiuiit  have  been  committed  iu 
one  and  the  same  transaction.     See  note  to  St,tle  v.  Sly,  ante,  p.  63. 


^TT^ 


jt  1  ■ 
:« 1  ■ 


428 


AMERICAN  CRIMINAL  REPORTS. 


H 


IHJ 


r. 


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if 


^  If 


'i  ■     V 

'  )'/ 

Brewer,  J.  Appellant  was  indicted  for  tlie  crime  of  plioot- 
ing  with  intent  to  kill.  To  this  indictment  he  pleaded  autirfoig 
acquit.  A  demurrer  to  this  plea  was  sustained,  and  without 
■waiting  until  after  a  trial  on  the  merits,  defendant  has  a])poiiled 
to  this  court  from  the  ruling  sustaining  the  demurrer.  1  )oul)t- 
less  the  appeal  is  premature,  and  the  case  not  properly  before 
U8.  No  judgment  has  yet  been  rendered,  and  a])peals  in  crim- 
inal cases  are  only  from  judgments  (Gen.  Stat.,  p.  8G5,  sec. 
281 ;  The  State  v.  Freeland,  16  Kas.,  9). 

But  waiving  this,  we  think  the  ruling  of  the  district  court 
was  correct.  The  plea  disclosed  a  prosecution  against  ai)i)elliiiit 
for  maliciously  shooting  and  wounding  a  horse,  not  the  property 
nor  in  the  possession  of  the  party  upon  whom  the  assault  with 
intent  to  kill  is  charged  to  have  been  made,  and  alleged  that  tlie 
shooting  charged  in  the  two  prosecutions  was  one  and  the  sume 
shooting.  Does  this  disclose  an  acquittal  of  the  offense  of  whicli 
he  ie  now  clijirged?  We  think  not.  The  two  offenses  are 
entirely  distinct.  One  is  not  inclndod  in  the  other— is  not  a 
lesser  degree  of  the  other.  The  character  of  the  testimony 
must  be  different  in  each.  One  fact,  that  is,  "shooting,"  may 
be  necessary  for  conviction  under  either  charge.  But  soniotliing 
more  is  necessary  in  each,  than  the  mere  fact  of  shooting.  The 
rule  is  thus  stated  by  Wharton  in  his  Criminal  Law  (1  Wharton, 
7th  ed.,  sec.  665):  "It  may  be  generally  said,  tiiat  the  fact  tliat 
the  two  offenses  form  part  of  the  same  transaction,  is  no  defense 
when  the  defendant  could  not  have  been  convicted  at  tlie  iirst 
trial,  on  the  indictment  then  pending,  of  the  offense  charged  in 
the  second  indictment."  And  again:  "Where  the  evidence 
necessary  to  support  the  second  indictment  would  have  been 
enlHcient  to  procure  a  legal  conviction  upon  the  first,  tlie  ph'u  is 
generally  good,  but  not  otherwise."  It  was  said  by  Lord  Den- 
inan,  in  lieglna  v.  Jlitfton,  11  Ad.  and  Ellis,  new  series.  !t4»}, 
"  The  same  act  may  be  part  of  several  offenses.  The  same  blow 
may  be  the  subject  of  inquiry  in  consecutive  charges  of  niiinlcr 
iind  robbery.  The  acquittal  on  the  first  charge  is  no  bar  to  a 
second  inquiry,  where  both  are  charges  of  fi'lonies;  neither 
ought  to  be,  when  the  one  charge  is  of  felony,  and  the  other  of 
misdemeanor."  In  1  Uussell  on  Crimes,  it  is  laid  down,  that, 
"  The  accjuittal  on  one  indictment,  in  order  to  be  a  good  defense 
to  a  subsefiueiit  indictment,  must  bo  an  acquittal  of  tlio  same 
identical  offense  charged  in  the  first  indictment."     In  the  case  of 


■4 
( 


■■M>*< 


STATE  V.  HORNEMAN. 


429 


the  Commonioealth  v.  Harrison,  11  Gray,  308,  a  party  whc  had 
been  tried  for  selling  licjuors  without  license  was  cojivicted  of 
the  offense  of  keeping  his  saloon  open  on  Sunday,  although  tho 
sale  of  the  liquor  was  part  of  the  evidence  to  sustain  the  latter 
charge.  In  Covimonwealth  v.  Bakeman,  105  Mass.,  53,  the 
defendant  had  been  acquitted  under  a  charge  of  willfully 
obstructing  the  engines  and  carriages  of  the  C.  railroad  company, 
by  placing  an  iron  rail  across  tho  track,  and  was  subsequently 
convicted,  upon  a  charge,  under  a  different  section  of  the  statute, 
of  willfully  putting  a  rail  across  the  track  with  intent  to  obstruct 
the  engines  and  carriages  of  the  same  coni])any,  and  the  convic- 
tion was  sustained,  although  the  same  act  was  referred  to  in  the 
two  charges.  The  court  uses  this  language:  "It  may  well  bo 
that  both  indictments  refer  to  the  same  transaction ;  but  that 
fact  is  not  decisive  as  to  the  legal  identity  of  the  two  offenses. 
The  test  as  to  the  legal  identity  of  the  two  offenses  is  to  be 
found  ia  the  answer  to  this  question  :  Could  the  prisoner,  ujion 
any  evidence  that  might  liave  been  produced,  have  been  con- 
victed u])on  the  first  indictment  of  the  offense  that  is  charged  in 
the  second?"  Sec  also  Commonwealth '\3.  lioby,  12  Pick.,  490, 
in  which  it  was  held  that  a  conviction  of  an  assault  with  intent 
to  murder,  could  not  be  pleaded  in  bar  to  an  indictment  for  mur- 
der. In  Price  v.  The  State,  19  Ohio,  423,  the  rule  is  stated  as 
taken  from  Archbold's  Cr.  Pleading,  and  also  from  Roscoe's  Cr. 
Ev.,  that  "the  true  test  by  which  tho  question,  whether  such  a 
plea  is  a  sufficient  bar  in  any  case,  may  be  tried,  is,  whether  tho 
evidence  necessary  to  sup[)ort  the  second  indictment  would  have 
been  sulHcient  to  prove  a  legal  conviction  in  the  first." 

Tliose  authorities  are  decisive  of  the  question,  and  the  ruling 
of  the  district  court  was  correct. 

The  appeal  will  be  dismissed. 

All  tho  justices  concurring. 


^!. 


J 


10 


^4 


■h 


ri  * 


430  AMERICAN  CRIMINAL  REPORTS. 


JOHNSOW  V.   StATB. 

(29  Ark.,  31.) 

Practicb:    Fbrmer  jeopard]/ — Defective  plea  of  oiUnfois  aequit  aided  by  the 

record. 

Where  a  person  indicted  for  murder  is  found  guilty  of  murder  in  the  second 
degree,  this  verdict  is  In  legal  effect  an  acquittal  of  the  chnrge  of  niunlcr 
in  the  first  degree.  If  he  is  granted  a  new  trial  he  cannot,  on  the  second 
trial,  be  convicted  of  murdrr  in  the  first  degree. 

The  constitutional  provision  that  defendant  shall  not  be  twice  put  in  jcopurdy 
for  the  same  offense,  does  not  operate  to  prevent  a  new  trial  of  a  charge 
on  which  the  defendant  has  been  once  convicted,  after  a  new  trial  has 
been  cranted  on  his  own  motion. 

Where  a  plea  of  former  acquittal  is  defective  in  form,  the  plea  may  be  aided 
by  the  record,  and  should  be  sustained  if  the  record  of  the  court  in  the 
same  cose  contains  everything  necessary  to  sustain  it. 

English,  C.  J.  Alexander  Johnson,  the  appellant,  was  indicted 
for  murder  in  the  Clark  circuit  court.  There  was  but  one  count 
in  the  indictment,  charging  him  with  murder  in  the  first  dc^xree. 
lie  was  tried  on  the  plea  of  not  guilty,  and  the  jury  returned  a 
verdict  of  murder  in  the  second  degree,  and  fixed  his  jiuuisli- 
niont  at  imprisonment  in  the  penitentiary  for  tweiity-oiu;  years. 
He  filed  a  motion  for  a  new  trial,  on  the  ground  that  the  dfliccr 
in  charge  of  the  jury  permitted  them  to  separate,  etc.  The 
motion  was  sustained  and  a  new  trial  granted  by  tlie  court,  lie 
was  again  tried  at  the  next  term,  the  jury  found  him  guilty-  of 
murder  in  the  first  degree,  a  motion  for  a  new  trial  was  over- 
ruled, and  he  was  sentenced  to  be  hanged  on  the  27th  (if  March, 
1874,  but  the  sentence  was  suspended  by  the  allowance  of  an 
appeal  by  one  of  the  judges  of  this  court. 

1.  Before  appellant  was  put  on  his  second  trial,  he  filed  a  pica 
in  bar  of  the  whole  indictment,  averring  the  former  trial  on  the 
indictmen't,  the  verdict  of  guilty  of  murder  in  the  second  degree, 
the  granting  of  a  new  trial,  and  that  he  had  once  before  been  in 
jeopardy  for  the  offense  charged  in  th(^  indictment,  and  priiyiiig  to 
be  discharged.     The  court,  of  its  own  motion,  overruled  tliis  plea. 

It  is  very  well  settled  that,  where  a  defendant  is  tried  and 
convicted  of  a  criminal  offense,  and  a  new  trial  is  granted  Iiim  on 
his  own  motion,  he  may  be  tried  again  for  the  same  olTciise. 

It  is  true  that,  by  a  constitutional  provision  as  well  as  by  the 


c« 


•m 


JOHNSON  V.  STATE. 


4ni 


common  law,  no  man  can  be  twice  put  in  jeopardy  of  life  or  limb 
for  tiic  same  offense;  but  where  the  first  jeopardy  has  resulted  in 
his  conviction,  it  is  rather  a  merciful  interposition  of  the  court, 
than  any  invasion  of  his  rights,  to  set  aside  the  conviction  upon 
his  own  application,  in  order  to  afford  him  the  opportunity  of 
another  trial :  Stewart  v.  The  State,  13  Ark.,  747. 
Whether  the  appellant  could  be  put  on  second  trial  for  murder 
the  first   degree,   after,  by  the  first  verdict,  he  had  been 


in 


impliedly  acquitted  of  that  grave  offense,  we  shall  presently  see. 
But  that  he  could  be  tried  again  for  murder  in  the  second  degree, 
of  wftch  he  had  been  convicted,  and  a  new  trial  granted  at  his 
own  request,  and  for  his  own  benefit,  there  is  no  doubt.  The 
bill  of  exceptions  states  that  the  court,  of  its  own  motion,  over- 
ruled the  plea.  This  is  not  the  usual  mode  of  disposing  of  a 
bad  plea.  It  would  liave  been  more  regular  to  dispose  of  it  on 
demurrer :  Sanger  v.  State  Bank,  14  Ark.,  412.  But  a  techni- 
cal irregularity  in  getting  rid  of  a  bad  plea  is  no  cause  of  reversal. 
If  the  court  had  merely  disi-egarded  the  plea,  and  made  no  dispo- 
sition of  it  whatever,  the  judgment  would  not  be  reversed  and 
the  cause  remanded,  merely  to  get  rid  of  a  bad  plea :  Brearly 
V.  Perry,  23  Ark.,  172. 

II.  The  appellant,  before  he  was  put  on  his  second  trial,  and 
after  the  plea  of  once  in  jeopardy  was  overruled,  filed  the  follow- 
ing plea  of  former  acquittal : 

"The  defendant  pleads  that  he  has  been  acquitted  of  the 
offense  of  murder  in  the  first  degree,  as  alleged  in  the  bill  of 
indictment,  by  the  judgment  of  the  Clark  circuit  court,  entered 
on  the  3()th  day  of  October,  1873." 

To  this  plea  the  state  demurred,  on  the  following  grounds: 

1.  The  plea  does  not  show  how,  or  in  what  manner  the  defend- 
ant has  been  put  in  jeopardy  of  his  life. 

2.  It  does  not  set  out  the  record  of  the  former  indictment. 

3.  It  does  not  ))ropo8e  to  verify  the  same  by  the  record. 

4.  It  is  for  other  reasons  insufficient  in  law. 

The  court  sustained  the  demurrer.  This  plea  was  a  loose 
attempt  to  set  up  the  im]>lied  acquittal  of  the  appellant  of  the 
chiii'ge  of  murder  in  the  first  degree,  by  the  verdict  of  guilty  of 
in\irder  in  the  second  degree,  rendered  in  the  first  trial  of  the 
cause.  The  plea,  however,  substantially  follows  the  form  pre- 
scribed by  the  code,  for  the  record  entry  of  such  i)U'as  (Gantt's 
Dig.,  sec.  1851),  and  was  aided  by  the  record  of  all  the  ])reviou8 


ii 


wn 


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432 


AMERICAN  CRIMINAL  REPORTS. 


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■  ■  li  I  I 


steps  which  had  been  taken  in  the  cause,  which  was  before  the 
court. 

The  defense  attempted  to  be  set  up  by  the  plea  was  a  matter 
of  record  in  the  cause  which  the  court  was  proceeding  to  try 
and  the  court  was  cognizant  of  all  its  proceedings  in  the  prom- 
ises :  Atkins  v.  The  State,  16  Ark.,  574.  The  court  sustained 
the  demurrer  to  the  plea,  not,  perhaps,  because  of  its  want  of 
form,  but  for  the  reason  that,  in  its  judgment,  the  matter  of 
defense  intended  to  be  interposed  by  the  plea  was  no  bar  to  the 
second  trial  for  murder  in  the  first  degree,  for  the  court  after- 
wards, in  its  charge  to  the  jury,  told  them,  in  effect,  tluft  tlie 
appellant  might  be  convicted  of  murder  in  the  first  degree,  and 
refused  to  instruct  to  the  contrary  at  the  instance  of  the  appellant. 
The  record  of  the  former  implied  acquittal  of  the  api)ellant  uf 
murder  in  the  first  degree  being  before  the  court,  in  the  very 
cause  which  it  was  trying  a  second  time,  it  was  the  duty  of  the 
court  to  tell  the  jury  thfit  they  could  not  find  him  guilty  of  that 
grade  of  offense,  if  such  be  the  law,  even  if  the  ap})elhint  had 
not  interposed  a  plea  of  former  ac«iuittal :  Atkins  v.  The  State, 
supra. 

And  this,  for  the  first  time,  brings  this  question  fairly  before 
this  court :  Where  a  person  indicted  for  murder  in  the  first 
degree  is  convicted  of  murder  in  the  second  degree,  and  obtains 
a  new  trial,  can  he  be  tried  a  second  time  for  the  higher  grade 
of  offense  ? 

There  are  two  grades  of  murder  under  our  statutes ;  murder 
in  the  first  degree,  which  is  defined,  and  punishable  by  death, 
and  murder  in  the  second  degree,  punishable  by  imprisonment  in 
the  penitentiary  for  not  less  than  five  and  not  more  than  twenty- 
one  years:  Gaiitt's  Dig.,  sees.,  125;5-4,  12<i2-3.  In  all  cases  of 
murder,  on  conviction,  the  jury  are  required  to  find  by  tludr 
vei-dict  whether  the  accused  is  guilty  of  murder  in  the  first  or 
eeeitnd  degree  :  Id.,  sec.  1057.  There  are  also  two  grades  of 
manslaughter  which  are  defined  by  the  statute :  voluntary,  pun- 
ishable by  imprisonment  in  the  penitentiary  for  not  less  than 
two,  nor  more  than  seven  years,  and  involuntary,  ])unlshable  hj 
like  imprisonment  for  a  period  not  exceeding  twelve  months: 
/th,  sec,  1204  to  1378.  Upon  an  indictment  for  an  offense  con- 
sisting of  several  degrees,  the  defendant  nuiy  be  found  guilty  of 
any  degree  not  higher  than  that  charged  in  the  indictment, 
and  may  bo  found  guilty  of  any  offense  included  in  that  charged 


■ 


^|-.>"v  I"' 


i 


before  tlie 

^as  a  matter 
ing  to  try, 
I  the  prom- 
rt  sustained 
its  want  of 
3  matter  of 

bar  to  tlie 
court  after- 
ct,  tliift  tlie 
(legrof,  aiitl 
e  appellant, 
ppellaut  uf 
n  the  very 
[hity  of  tile 
ilty  of  tliiit 
pellaut  had 

77/ e  State, 

iiirly  before 
ill  the  first 
and  obtains 
ligher  grade 

:e8 ;  murder 

0  by  death, 
•iKonmentin 
ban  twenty- 

1  all  cases  of 
lid  by  their 
tlio  first  or 
o  grades  of 
mtary,  pnn- 
ut  less  than 
nisbuble  by 
ve  months : 
olIeiiBo  con- 
iid  guilty  of 
indietment, 
;lmt  charged 


JOHNSON  V.  STATE. 


433 


in  the  indictment :  Id.,  1961.  The  appellant  being  indicted 
for  umrder  in  the  first  degree,  could  liave  been  convicted  of  any 
degree  of  homicide  warranted  by  the  evidence :  Id.,  1962.  By 
the  verdict  of  the  jury,  rendered  on  the  first  trial,  he  was  con 
victed  of  murder  in  the  second  degree,  and  impliedly  acc^uitted 
of  the  higher  grade  of  ofiEense,  murder  in  the  first  degree.  If 
this  verdict  had  not  been  set  aside,  on  his  motion,  be  certainly 
never  could  have  been  tried  again  for  the  higher  offense.  Did 
the  granting  of  a  new  trial,  at  his  request,  subject  him  to  be 
tried  again  for  murder  in  the  first  degree,  of  which  he  had,  on 
legal  elfect,  been  acquitted  by  the  first  verdict? 

A  clause  in  the  ninth  section  of  the  bill  of  rights  of  the  con- 
gtitutioii  of  1868,  declares  that  "  no  person,  after  having  been 
once  ac(piitted  by  a  jury  for  the  same  offense,  shall  be  again  put 
ill  jc'(»pardy  of  life  or  liberty." 

This  is  ecpiivalent  to  the  twelfth  section  of  the  bill  of  rights 
of  the  constitution  of  1836,  which  declares:  "That  no  person 
isliall,  for  the  same  offense,  be  twice  put  in  jeopardy  of  life  or 
limb." 

A  similar  provision  exists  in  the  constitution  of  the  United 
States,  and  in  the  constitutions  of  most  of  the  states.  But  this 
rule,  says  Mr.  Greenleaf,  has  a  deeper  foundation  than  mei-e 
positive  enactment,  it  being,  as  Mr.  Justice  Story  remarked, 
inihedded  in  the  very  elements  of  the  common  law,  and  uniformly 
construed  to  present  an  insu|)era])le  barrier  to  a  second  prosecu- 
tion, where  there  has  been  a  verdict  of  acquittal  or  conviction, 
rei,'iilarly  liad,  upon  a  sufiicient  indictment :   3  Greenl.  Ev.,  p.  34, 

sec.  35. 

Ill  Tfie  State  v.  yoi'iuU,^2  Yerger,  24,  the  defendant  was 
indicted  for  murder,  and  was  found  not  guilty  of  murder,  but 
guilty  of  manslaughter.  This  verdict,  though  no  judgment  was 
entered  upon  it,  was  held  to  be  a  bar  to  a  second  indictment  for 
murder,  the  first  indictment  being  good,  and  the  judgment  upon 
it  iinpro[)erly  arrested. 

In  Cainphell  v.  The  State,  9  Yerger,  333,  the  indictment  con- 
tained three  counts  for  larceny.  The  jury  found  the  defendant 
not  guilty  as  charged  in  the  first  and  third  counts,  but  guilty  as 
charged  in  the  second  count.  He  moved  for  a  new  trial,  and  tho 
court  set  aside  the  wliole  verdict,  and  ordered  him  to  be  tried  a 
Becond  time  on  the  whole  indictment,  and  he  was  found  guilty 
ou  the  third  count,  and  a  motion  in  arrest  of  judgment  was  over- 
Voi..  II.— :.'8 


f; 


ST(      -^-^    -if '■»  , 


i   fr 


434 


AMERICAX  CRIMINAL  REPORTS. 


m  ■ 

III :  '  ; 


I     1 

i|jfl 

■      M^lv 

^ 

!M 

-n  i'^ 

1 

ll 

, 

'M 

•  ^ 

t 

-v'  ^ 

v'.,i 

ti 

1' 

'M 

1 

1     ': 

ruled.  The  Sii])reiiie  Court  reversed  the  judgment,  and  ordered 
tlie  accused  discluirged,  on  tlie  ground  that  the  lirst  verdict  of 
ac(juittal  on  the  third  count  was  a  l)ar  to  a  second  trial  on  the 
t^anie  count. 

In  Sliuujhter  v.  The  State,  6  Humph.,  412,  the  accused  was 
indicted  for  murder,  and  the  jury  found  him  not  guiUy  of  mur- 
der, hut  guilty  of  voluntary  nlall!^]aughter.  On  his  motion,  a 
new  ti'ial  was  granted,  and  it  was  held  that  he  could  not  he  put 
upon  a  second  trial  for  murder,  and  that  the  court  should  have 
60  instructed  the  jury. 

In  irurt  V.  The  State,  25  Miss.,  378,  the  accused  was  indicted 
for  murder,  and  the  jury  found  him  guilty  of  nianslaugliter  in 
the  third  degree.  A  new  trial  was  refused,  and,  on  eiTor.  the 
judgment  was  reversed,  and  the  prisoner  discharged,  on  the 
ground  tliat  a  second  indictment  for  manslaughter  (tlie  iirst 
heing  had)  was  harred  by  limitation,  and  that  the  verdict  of 
manshuighter,  on  the  first  indictment,  was  an  ac(|uittal  of  the 
charge  of  murder,  and  that  he  could  not  be  tried  again  for  that 
offense.  The  coMrt  said  :  "  A  verdict  of  a  jury  iinding  a  party, 
put  upon  his  trial  for  murder,  guilty  of  manslaughter  in  the 
third  degree,  must,  of  necessity,  operate  as  an  acquittal  of  every 
crime  of  a  higlier  grade  of  which  he  might  liave  been  convicted 
under  the  indictment  upon  which  tlie  issue  was  made  ;  otlier- 
wise  the  pfirty,  after  undergoing  the  sentence  of  manslaughter, 
migiit  be  put  upon  his  trial  for  the  charge  of  murder,  wliicli 
would  then  be  oidy  postponed,  and  decidi'd  by  the  verdict  of 
manslaughter.  The  jury,  in  such  case,  render  two  verdicts— one 
accjuitting  the  accused  of  the  higher  crime  charged  in  the  indict- 
ment, the  other  finding  him  guilty  of  an  inferior  crinie.  The 
verdict  of  manslaughter  is  as  much  an  acupiittal  of  the  cliarire  of 
murder  J\p  a  verdict  pronouncing  his  entire  innocence  would  he, 
for  the  effect  of  both  is  to  exempt  him  from  the  penalty  of  the 
law  for  such  crime." 

The  court  further  said  :  "  But  it  is  said  that  such  verdict  only 
o|)erate8  as  an  ac(piittal  while  it  is  ])('rmitted  to  stand  as  part  of 
the  action  of  the  court  below,  and  as  it  has  been  set  aside  by  this 
court  upon  the  prisoner's  own  a])pli('ati()n,  the  cause  must  be 
treated  in  all  res])eets  as  if  no  trial  had  taken  place.  In  support 
of  this  position,  authorities  have  been  cited  holding,  that  when 
the  jtnlgment  U|)on  a  trial  for  murder  is  arrested,  the  \vay\\  may 
be   remanded    and   a^jain   indicted  for   the  same  offense.     The 


m''nm 


, -i  ■;:4i:^^? 


JOHNSON  i\  STATE. 


435 


authorities,  doubtless,  announce  the  law  correctly,  but  they  have 
no  application  to  the  question  under  consideration.  The  judg- 
ment is  only  arrested,  in  any  case,  where  the  verdict  is  against 
the  party.  He  would  certainly  never  move,  neither  would  the 
court,  for  a  moment,  entertain  siich  motion  in  arrest  of  judg- 
ment, when  the  verdict  was  in  his  favor.  Here  the  verdict  of 
the  jury  acquitted  the  party  of  the  crime  expressly  charged  in 
the  indictment,  and,  at  the  same  time,  exempted  him  from  the 
penalty  of  the  law  for  its  supposed  commission.  He  could  not 
move  in  arrest  of  the  judgment  on  this  part  of  the  verdict, 
because  the  judgment  c(tiTesponding,  in  contemplation  of  law, 
with  the  verdict  in  this  respect,  must  also  have  been  one  of 
acquittal  of  the  charge  of  murder.  Whether  this  judgment  was 
ill  fact  ])ronounced  by  the  court,  as  ought  to  be  the  practice,  or 
attached  by  mere  operation  of  law  to  the  verdict,  it  was  l)ound 
to  be  in  the  i)arty's  favor,  iind  it  could  not,  therefore,  be  arrested 
or  set  aside  on  his  motion." 

In  Brennan  et  al.  o.  The  People,  15  111.,  512,  a  number  of 
persons  were  indicted  for  murder.  Four  of  them  were  tried  on 
the  plea  of  not  guilty,  and  the  jury  found  three  of  them  guilty 
of  murder,  and  the  fourth,  Ryan,  guilty  of  manslaughter  only. 
The  defendants  moved  for  a  new  trial,  which  was  granted.  They 
were  tried  again,  and  all  of  them  found  guilty  of  murder,  and 
the  case  was  taken,  by  writ  of  error,  to  the  Supreme  Court  of 
Illinois.  After  deciding  other  questions  in  the  case,  the  court 
said : 

"■  Was  the  prisoner  Ryan  properly  put  upon  his  trial,  a 
R'coiid  time,  for  the  murder  of  Story  ?  An  indictment  for  mur- 
der enibra(!es  the  charge  of  manslaughter.  The  lesser  is  included 
in  the  greater  accusation.  On  such  an  indictment  the  jury  may 
find  the  prisoner  guilty  of  manslaughter.  And  such  a  finding 
aiiKiunts  to  an  acquittal  of  the  charge  of  murder.  The  finding 
of  the  inferior  is  necessarily  a  discharge  of  the  superior  offense, 
liyaii  was  regularly  put  upon  his  trial  on  the  indictment,  and 
was  found  guilty  of  manslaughter.  In  contemplation  of  law, 
the  jury  rendered  two  verdicts  as  to  him — one  acquitting  him  of 
the  murder  of  Story,  and  the  other  convicting  him  of  the  man- 
slaughter  of  Story.  He  was  thus  legally  tried  for  the  offense  of 
murder,  and  ac(]uitted.  It  is  perfectly  clear  that  he  could  not 
again  be  put  in  jeopardy  on  the  same  charge,  unless  that  acquittal 
Wiis  set  aside  at  his  instance. 


I 


486 


AMERICAN  CRIMINAT    IlEPOllTS. 


|{i  ■ 

II'    '' 


11 


i-i^ 


y''^ 


A  verdict,  eitlier  of  acquittal  or  conviction,  is  a  bar  to  a  suV 
sequent  prosecution  for  the  same  offense,  altlioui^h  no  judgmunt 
has  been  entered  upon  it :     Mount  r.  The  State,  14  Oliiij,  2i>5; 
The  State  v.  Norvell,  2  Yei-<i;er,  24 ;  Hurt  v.  The  State,  25  Miss., 
378.     It  does  not  appear,  from  the  record,  that  Ryan  lias  ever 
waived  the  benefit  of  the  verdict  of  acquittal.     It  is  true  that  he 
united  witli  the  other  prisoners  in  asking  for  a  new  trial,  but  the 
application  as  to  him  must  be  roj,'ardod  as  extending  only  to  the 
charge  upon  which  he  was  convicted.     lie  had  no  occasion  for 
another  trial,  except  as  to  the  charge  of  manslaughter.     l»oiiig 
legally  acquitted  of  the  charge  of  murder,  he  surely  did  not 
desire  that  to  be  again  investigated.     It  is  not  to  be  prosumod 
that  he  would  voluntarily  place  himself  in  ])oril  upon  a  charge 
on  which  he  had  already  been  tried  and  acquitted.     Even  if  the 
court,  upon  his  motion,  could  open  the  whole  case,  the  record 
does  not  show  that  such  a  power  was  either  invoiced  or  exercised. 
The  application  for  a  new  trial  did  not  necessarily  relate  to  the 
cliarge  upon  which  he  was  acquitted.     It  naturally  referred  to 
the  charge  on  which  he  was  convicted.     Nor  did  the  court,  in 
terms,  set  aside  the  entire  finding  of  the  jury.     It  simply  granted 
the  prisoner  a  new  trial.     The  order  was  no  broader  than  the 
application.     There  were  two  distinct  findings  as  to  Ryan,  and, 
therefore,  there  was  not  the  least  necessity  for  disturbing  the  one 
acquitting  him  of  murder.     The  one  might  be  set  aside,  and  the 
other  allowed  to  stand.     The  verdict  was  not  an  entire  tliinn; 
which  should  wholly  stand  or  fall.     This  view  gives  full  effect 
to  the  order  of  the  court.     There  was  still  a  charge  iii^on  wjiich 
Ryan  could  again  be  tried.     This  view  of  the  questiun  is  sus- 
tained by  adjudicated  cases,"  etc. 

The  court  cited,  with  approval,  Camphell  v.  The  State,  9  Yer- 
ger,  333,  and  other  cases,  and  reversed  the  judgment  as  to  Ry;in, 
and  remanded  the  cause,  with  directions  that  he  be  tried  ag;iin 
for  manslaughter,  and  affirmed  the  judgment  as  to  the  other 
three  prisoners.  This  case  was  approved  and  followed  in  Bur- 
nett V.  The  People,  54  111.,  325. 

In  Jones  et  al.  v.  The  State,  13  Texas,  IfiS,  the  prisoners  were 
indicted  for  murder  in  the  first  degree;  they  were  tried  on  the 
plea  of  not  guilty,  and  found  guilty,  by  the  jury,  of  murder  in 
the  second  degree.  A  new  trial  was  granted  on  their  motion, 
and  they  were  tried  a  second  time  and  convicted  for  munloi-  in 
the  first  degree.     On  appeal  to  the  Supreme  Court  of  Texas,  the 


J 


JOHNSON  V.  STATE. 


43 


>i 


jiulginent  was  reversed.  Mr.  Justice  Lipscomb,  who  delivered 
the  opinion  of  the  court,  after  examining  tlie  authorities,  said : 
"The  result  of  our  investigation  is,  that  both  on  principle  and 
the  authority  of  adjudged  cases,  tbe  ai)pellants,  after  having 
been  acquitted  of  murder  in  the  lirst  degree,  and  found  guilty  of 
murder  in  the  second  degree,  could  not  be  legally  tried  and  con- 
victed of  murder  in  the  first  degree,  and  that  the  verdict  so  find- 
ing them  cannot  stand  as  the  basis  of  a  judgment  and  execution 
thereon." 

In  The  State  v.  Tweedy,  11  Iowa,  351,  the  accused  was  indicted 
for  murder  in  the  second  degree,  and  found  gnilty  of  man- 
slaughter. The  judgment  was  reversed  on  appeal,  and  the  cause 
remanded  for  trial  again.  On  the  second  trial,  the  court  refused 
to  instruct  the  jury  that  he  had  once  been  acquitted  of  murder, 
and  could  only  be  tried  again  for  manslaughter.  The  case  went 
a'lfiiin  to  the  Supreme  Court,  and  in  a  very  able  review  of  the 
authorities  by  iMr.  Justice  Wright,  it  was  held  that  the  verdict 
of  manslaughter,  on  the  first  trial,  was  an  acquittal  of  murder  in 
the  second  degree,  and  that  the  prisoner  could  not  again  be  piit 
in  jeopardy  for  that  offense.  The  court  said  :  "  When  the  pris- 
oner moved  for  a  new  trial,  and  appealed  to  this  court,  he  sought 
to  be  relieved  of  a  judgment  against  him  for  manslaughter.  lie 
had  no  complaint  to  make  that  the  jury  had  not  convicted  him 
of  the  offense  of  murder.  If,  however,  he  might  properly  be 
subjected  to  a  second  trial  for  murder,  then  he  is  compelled  to 
submit  to  a  verdict  which  he  may  deem  ever  so  erroneous,  lest 
by  disturbing  it,  when  insisting  on  his  legal  rights,  he  may  place 
liimself  again  in  jeopordy.  When  a  jury  lias  once  returned  a 
verdict  of  guilty  as  to  the  lower  offense,  the  prisoner  should  not, 
in  our  opinion,  be  placed  in  a  position  of  additional  hazard,  by 
attempting  to  be  relieved  of  the  erroneous  judgment.  It  is  set- 
tled, upon  authority,  that  if  he  obtains  a  new  trial,  he  may  be 
again  tried  for  the  offense  of  which  he  was  convicted.  It  is  a 
very  different  thing,  however,  when  it  is  sought  to  try  him  for 
an  offense  of  which  he  was  not  convicted,  and  which  was  not, 
necessarily,  in  the  verdict  of  guilty." 

In  The  State  v.  Jioss,  29  Mo.,  32,  Boss  was  indicted,  by  a 
single  count,  for  murder  in  the  first  degree,  tried  on  the  plea  of 
not  guilty,  and  verdict  of  guilty  of  murder  in  the  second  degree. 
Oil  an  appeal  to  the  Supreme  Court  of  Missouri,  the  judgment 
•was  reversed,  and  the  cause  remanded  for  a  new  trial.     Ross  filed 


W'     '  ' 


i 


438 


AMEliK  AN  CRIMINAL  REPORTS. 


a  plea,  setting  up  tlie  former  iinpllod  acquittal  of  murder  in  tlie 
first  degree,  as  a  bar  to  any  further  prosecution  for  tliat  grade  of 
offense.  A  demurrer  was  sustained  to  the  plea,  and  on  a  soeoiid 
appeal,  the  Supreme  Court  held,  in  a  well  considered  (>j)inion 
reviewing  the  authorities  (Scott,  J.,  dissenting),  that  the  verdict 
of  murder  in  the  second  degree  was  an  acquittal  of  niunlur  in 
the  first  degree,  and  that  the  accused  could  not  be  tried  again  for 
that  grade  of  offense.  See  also,  State  v.  Ball,  27  Mo.,  327;  1 
Bishop  (.'r.  L.,  sec.  076. 

In  Jordan  r.  The  State,  22  Ga.,  S.^S,  the  prisoner  was  indicted 
for  murder,  and  the  jury  found  him  guilty  of  manslaughter,  ami 
the  court  held  that  the  verdict  was  an  acquittal  of  murder,  and 
that  a  new  trial  could  not  be  granted  so  as  to  subject  him  to  a 
second  trial  for  murder. 

In  State  v.  Lepsing,  16  Minn.,  75,  the  indictment  was  for  mur- 
der in  the  firet  degree,  and  contained  a  single  count.  On  a  plea 
of  not  guilty,  the  defendant  was  tried  and  convicted  of  murder 
in  the  second  degree,  and  tlie  court  held  that  the  verdict  was 
equivalent  to  an  express  acquittal  of  murder  in  the  first  degree, 
and  a  bar  to  any  subsequent  prosecution  against  him  for  that 
grade  of  offense. 

In  Gunther  v.  The  People,  24  K  Y.,  100,  the  indictment  cm; 
tained  nine  counts  for  embezzlement,  and  others  for  larceny,  and 
the  verdict  was  guilty  of  embezzlement,  which  was  held  to  he 
equivalent  to  an  ac(iuittal  of  the  larcenies  charged,  and  a  bar  to 
any  subsequent  prosecution.  The  court  said  :  '*  If  the  jury  find 
the  prisoner  guilty  on  one  count,  and  say  nothing  in  their  ver- 
dict concerning  the  other  counts,  it  will  be  equivalent  to  a  ver- 
dict of  not  guilt}'  on  such  C(»unt8."  See  also,  to  the  same  elTeet, 
Welnzotpflii  V.  State,  7  Rlackf.,  186. 

So  in  Vlein.  v.  The  State,  42  Tnd.,  420,  held,  tlint,  if  upon  an 
indictment  for  murder  in  the  first  degree,  the  d(!ft;ndant  is  guilty 
of  an  inferior  grade  of  homicide,  without  saying  anything  as  to 
the  higher  grade,  the  finding  is,  by  implication,  an  acquittal  of 
the  higher  gra<le. 

In  Morris  >\  The  State,  1  P.lackf.,  37,  Mr.  Justice  II(.lnian 
incidentally  assumed  it  to  be  a  general  rule,  that  he  who  desires 
a  HOW  trial,  must  receive  it  as  to  the  whole  case  ;  and,  in  the  ('. 
S.  V.  //(irtli)if/  et  al.,  1  Wall.  Jr.  C.  C,  147.  ]\[r.  Justice  (Jreer 
(•antione(l  the  prisoners,  wh<»  had  been  acquitted  of  the  higlier 
and  convicted  of  the  lower  oiTense,  that  if  they  insisted  on  anew 


■f^plit^«ta 


JOHNSON  V.  STATE. 


439 


trial,  he  would  grant  it  upon  the  whole  indictment,  and  their 
lives  might  become,  on  a  second  trial,  forfeit  to  the  law ;  but 
whilst  such  expressions  of  these  learned  judges  are  entitled  to 
respect,  they  have  Tiot  been  treated,  in  the  cases  which  we  have 
cited,  as  adjudications  of  the  (piestion  we  are  considering. 

Mr.  Bishop  says,  "  The  waiving  of  a  constitutional  right, 
implied  in  the  making  of  an  apjdieation  for  a  new  trial,  is  not 
construed  to  extend  beyond  the  ])recise  thing  concerning  which 
the  relief  is  sought.  If,  therefore,  the  verdict  finds  a  prisoner 
guilty  of  part  of  the  charge  against  liim,  and  not  guilty  of 
another  part,  as,  for  example,  guilty  on  one  count  of  the  indict- 
ment, and  not  guilty  on  another;  or,  there  being  one  count, 
guilty  of  manslaughter,  and  not  guilty  of  murder,  and  a  new 
trial  is  granted  him.  he  cannot  be  convicted  on  the  second  trial 
of  the  matter  of  which  lie  was  acquitted  on  the  first :  "  1  Bishop 
Cr.  L.,  4th  ed.,  sec.  849. 

The  State  v.  Martin,  30  Wis.,  216,  is  very  similar  in  its  main 
features  to  the  one  now  before  us.  Martin  was  indicted  for 
murder,  tried  upon  the  plea  of  not  guilty,  and  found  by  the  jury 
not  guilty  of  murder,  but  guilty  of  manslaughter  in  the  second 
degree.  He  moved  the  court  to  set  aside  the  verdict,  and  grant 
him  a  new  trial,  on  the  ground  that  one  of  the  jurors  was  not 
impartial.  The  motion  was  granted,  and  on  the  second  trial  the 
jury  found  him  guilty  of  murder  in  the  first  degree,  the  court 
having  instructed  them  that  they  might  so  find  if  the  evidence 
warranted  such  a  verdict.  The  case  went  before  the  Supreme 
Court  of  Wisconsin  on  questions  of  law  which  arose  on  the 
trial,  and  among  them  the  one  now  before  us.  The  court  said  : 
''Tiie  doctrine  is  well  settled  in  this  state,  that  courts  have  the 
power  to  grant  a  new  trial  after  conviction,  for  a  good  cause, 
upon  the  application  of  tlie  defendant,  an<l  that  no  principle 
of  the  constitution,  or  the  common  law,  which  is  essential 
to  the  protection  of  tlie  rights  of  the  individual  is  violated 
thoriiby.  The  general  rule  is  that  one  trial  and  verdict  pro- 
tect the  defendant  against  any  subsequent  accusation,  whether 
the  verdict  be  for  or  against  him,  and  whether  the  court  is  satis- 
fied with  the  verdict  or  not.  But  a  person  already  convicted 
may  waive  the  constitutional  protection  against  a  second  prose- 
cution and  ask  for  a  new  trial  to  relieve  himself  from  the 
jeopardy  he  is  already  in.  And  when  he  does  so,  what  ought  to 
he  considered  the  extent  of  his  application  ?     Is  it  to  expose  him- 


,'• 


v< 


U  i 


440 


AMERICAN  CRIMINAL  REPORTS. 


self  to  tlie  possible  conviction  of  a  cliarge  of  which  lie  lius  been 
acquitted,  or  is  it  to  relievo  himself  of  the  one  of  which  he  lias 
hern  convicted?  It  would  seem  that  a  hare  statement  of  the 
]>!( (position  was  sufficient  to  furnish  the  proper  answer.  It  is 
not  in  accordance  with  the  principles  of  Jiuman  conduct  for  a 
person  to  ask  a  further  trial  of  a  charii^e  of  which  he  has  already 
been  found  guiltless  by  the  verdict  of  a  jury.  I»ut  he  socks 
deliverance  from  one  of  which  he  has  been  convicted,  and  lionce 
he  asks  that  he  may  again  be  put  upon  trial  for  this  charge.  In 
this  case  the  defendant  was  expressly  ac(iuitted  of  the  ch;irgeof 
murder  upon  the  first  trial,  and  convicted  of  a  lower  crime.  He 
asked  f(»i' and  obtained  a  now  trial.  Anew  trial  for  what  ?  Of 
the  charge  of  which  he  had  been  convicted,  or  the  otu'  of  which 
he  had  becTi  acfjuitted  ?  Is  it  reasonable  to  suppose  that  the 
defendant  asked  for  another  trial  in  order  to  determine  whether 
he  had  committed  the  crime  of  murder,  or  was  it  merely  to 
determine  wheth(;r  he  was  guilty  (d'  manslaughter  in  ili'  -('('(itKl 
degree,  of  which  he  stood  convicted?  The  answer  would  .cin 
to  be  plain,  upon  the  principle  that  it  was  the  latter  cliai'ge  alone 
that  lie  asked  to  have  retrird.  a;iil  tliat  Ills  application  for  a 
new  trial  should  be  held  to  apply  to  this,  aiul  not  to  the  other 
crime  of  which  he  was  ac(piirted.  And  this  is  in  accordance 
with  the  great  weight  of  jnili<'ial  opinion  up(»n  this  subject." 

The  court  held  that  the  prisoner  was  illegally  cf)nvicted  for 
murder  on  the  second  trial.  That,  on  the  second  trial,  the 
iiKpiiry  of  the  jury  should  have  been  conlined  to  tlu>  ci-inie  of 
which  he  had  been  convicted  on  the  first  trial.  It  is  our  opinion, 
upon  principle  and  the  great  current  of  adjudications,  that  the 
verdict  of  murder  in  the  second  degree,  rendered  by  the  jury  on 
the  first  trial,  was  ecjuivalent  to  an  acipiirtal  of  the  appellant  of 
murder  in  the  first  degree,  and  a  bar  to  a  second  trial  for  that 
grade  of  ollense.  There  is  a  Code  provisiini  as  follows:  "The 
granting  of  a  new  trial  j)laees  the  parties  in  the  same  position  as 
if  no  trial  had  been  had.  All  the  testimony  ninst  be  pnMJiiccil 
anew  and  the  former  verdict  cannot  be  used  or  referred  to  in  evi- 
dence or  arjiumcnt:"     (Jantt's  Dii;.,  sec.  11»T2. 

No  doubt  that  the  granting  of  a  new  trial  upon  the  a|)plication 
of  tlie  accused,  on  an  offense  of  whi(^h  he  is  c(»nvieted,  j)laces  him 
in  the  same  position  as  if  no  trial  had  been  had.  but  if  the  section 
<tf  th(^  (lode  above  (pioft^i  meant  to  go  further  and  provide  that, 
Avhere     he    indictment   charges    several    otl'enses    or    grades  of 


V  I, 

ili 


^Pif 


ALL1:N  r.  STATE. 


441 


offense,  and  on  the  first  trial  the  accused  is  convicted  of  one 
offense  or  ^rade  of  offense,  and  acquitted  of  another,  the  granting 
of  ii  new  trial  places  him  in  the  same  position  to  the  offense  or 
gr;i(l(!  of  offense  of  which  he  was  acquitted  as  if  no  trial  had  been 
liiul,  it  is  in  conflict  with  the  clause  of  the  ninth  section  of  the 
bill  of  rights  of  the  constitution  of  1868,  which  declares  that, 
"  No  person,  after  having  been  once  acquitted  by  a  jury  for  the 
Siinie  offense,  shall  be  again  put  in  jeopardy  of  life  or  liberty," 
and  the  section  of  the  Code  must  be  construed  and  administered 
by  this  paramount  consuitutional  limitation. 

There  is  a  similar  statute  in  Kansas,  and  in  The  State  v. 
McCord,  8  Kansas,  232,  the  defendant  was  tried  for  murder  and 
convicted  of  manslaughter,  and  upon  his  motion  a  new  trial  was 
grunted,  and  the  court  again  hold  that  he  was  to  be  tried  for 
iminler,  as  if  no  former  trial  had  been  had.  The  court  said  that 
the  granting  of  a  new  trial  was  a  legislative  privilege  awarded 
the  accused,  and  he  must  take  it  on  such  terms  as  the  legislature 
had  thought  proper  to  prescribe.  Tliis  case  is  reported  in  1 
(rroen.  Criminal  Law  TJcitorts,  4'>fi ;  and  is  disapproved  in  a  note 
l)y  the  autlior  as  coiiti-ary  to  principle,  etc. 

There  is  also  a  sinjilar  statute  in  (California,  and  in  The  People 
V.  (jfil/nore,  4  Cal.,  37<>,  it  was  <'(»iistrned  and  held  not  to  affect 
the  constitutional  protection  of  the  accused  against  a  second  trial 
for  an  offense  of  whidi  he  had  been  accpiittetl.  The  prisoner 
was  indicted  for  murder,  convicted  of  manslaughter,  and  a  new 
trial  granted.  The  court  held  that,  notwithstanding  this  statute, 
he  could  not  again  be  j)ut  u])on  trial  for  murder. 

The  judgment  must  be  reversed  and  the  cause  remanded,  with 
instruction  to  the  court  below  to  grant  the  a]>pellant  a  new  trial, 
and  that  he  bo  tried  as  if  indicted  for  nmrdur  in  the  second 
degree. 


1i) 


Al-LKN    V.    SlATB. 

(54  Ind.,  401.) 

PnxcTK^E:    ComtUuHonal  rt'ghUt —  Waiver. 

A  defendant,  in  a  criminal  i>rnseculion,  cannot,  waive  liis  risht  to  »  loRal  jury 
fif  Iwclvc  men,  mill  a  trial  iind  convktiou  by  less  tlian  tliat  uuml)cr. 
ullli'iugli  by  his  cDnsunt,  is  illegal. 


m 


Mi 
I 


442 


AMERICAN  CRIMINAL  REPORTS. 


WoKDEN,  C.  J.  Tlie  appellant  was  indicted  in  the  court 
below  for  tlie  larceny  of  four  chickens,  of  the  value  of  thirty 
cents  each. 

lie  was  put  upon  trial  before  a  jury,  but  during  the  profrresg. 
of  the  cause  two  of  the  jurors  were  discharged  by  the  consent  ' 
the  defendant,  and  the  remaining  ten  jurors  returncil  ,^ 

of  guilty,  assessing  the  defendant's  punishment  at  a  lin  oi  Jive 
dollars,  eighteen  months'  imprisonment  in  the  state  prison,  and 
disfranchisement  for  the  period  of  five  years. 

Judgment  was  rendered  on  the  verdict.  This  judgment  cau 
not  be  maintained.  The  trial  of  a  criminal  cause,  by  a  jury  cuii- 
sisting  of  a  less  number  than  twelve,  is  unauthorized  by  law.  and 
the  verdict  in  such  case  is  void :  Brown  v.  The  State,  W  Inrl , 
4!>(;.     See,  also,  /////  v.  The  People,  10  Mich.,  351. 

The  judginent  is  reversed,  and  the  cause  remanded  fo'  turtiier 
proceedings. 

The  clerk  will  give  the  proper  notice  for  the  return  of  the 
prisoner. 


UnIIKI)    Sl'ATKS     v.    SacUAMKNTO. 

(•J   Mdiil.   'I'cr.,  -i-M. 

PUACTICR;     Waiver  of  ri'/lil  t<i  he  roni'miitiil  irlth  iriluennta  —  Affidirit  for  con- 

liiiiidiii'i'  ri'iid  in  (  riiliHce, 

A  i"'r«)n  iiidictiMl  for  iiiilawriilly  sclliiiL''  li(|ii(irt()  iin  Iiidiim,  wliicli  is  ii  itiis- 
(li'mcanor.  ilciiiaiKlcil  mii  imiiH'diatc  trial.  Tin- district  ntlovncy  ninvril 
for  a  conlimiancc,  on  an  allidavit  liiat  li*t  expected  to  prove  all  the  iiiiiir- 
rial  facts  of  tlie  iiidicUneiit.  hy  two  witiiesHes  whose  iil'eiidanee  lie  eoiild 
not  now  procure.  Counsel  for  rcs|iondent  olferctl  to  admit  ili;  I  the  wit- 
nes-^es,  if  present,  wmild  testify  as  set  forth  in  the  allWhivit.  riie  court, 
\ipoii  this  adndssion  lii'lnir  made,  refii-^ed  a  continuance,  and  procec(|((l 
with  llie  case,  llilil.  the  defendant  could,  and  did,  in  this  case,  waive 
his  constitutional  riiriil  to  he  eonfionted  with  \\w  witness,  and  ihat,  llii! 
iiillilavil  for  a  continuance  wa.s  properly  admitted  iu  evidcuce  uj^iiiust  thu 
defendant. 


Lkwis,  .1,  At  the  'N'ovcmbcr  term  of  the  di.^trict  court,  A.  I). 
1S74,  sitting  as  a  court  for  tlic  trial  of  causes  arising  under  tho 
constitution  mni  laws  of  the  United  States,  tlic  iij)pi'llaiit  was 
indicted  for  a  violation  of  an  act  of  the  congress  of  the  (^iiitcd 
States,  piissed    March    IHtli,  lS(t4,  amending  an   act  regidatiiiE; 


UNITED  STATES  v.  SACRAMENTO. 


445 


trade  ami  intercourse  with  the  Indians,  passed  June  30,  1834, 
wliereby  it  is  provided  that,  if  any  person  sliall  soil,  exchange, 
ffive,  barter  or  dispose  of  any  sin'rituons  liquors  or  wine  to  any 
Indian,  under  the  charge  of  any  Indian  a<fent  appointed  by  the 
United  States,  or  shall  introduce,  or  attempt  to  introduce,  any 
spirituous  liquors  or  wine  into  the  Indian  country,  such  person, 
on  conviction  thereof,  etc.,  shall  be  iinprisoned,  etc. :  13  LT.  S. 
Stat.,  29. 

The  indictment  charges,  in  substance,  that  on  the  22d  day  of 
September,  1S74,  the  appellant  did  uidawfully  dispose  of  one 
ifill  of  spirituous  liquors,  to  wit,  whisky,  to  one  John  Doe,  an 
Indian,  whose  nal  name  was  unknown  to  the  grand  jury;  said 
Indian  being  then  under  the  charge  of  the  Indian  agent  for  the 
Blackfeet  and  other  neighboring  tribes  of  Indians  within  the 
territory  of  Montana. 

To  this  indictment  the  appellant,  upon  being  arraigned,  pleaded 
not  guilty,  and  detnanded  an  innnediate  trial.  The  United  States 
attorney  then  moved  the  court,  upon  affidavit,  for  a  continu- 
ance of  the  trial  until  the  next  succeeding  term  of  the  court. 
The  affidavit  set  forth  that  one  Strangle  Wolf  and  one  IMary 
Kite  wei-e  material  witnesses  for  the  prosecution,  and  without 
their  testimony  he  could  not  safely  proceed  to  trial ;  that  he 
exjiected  to  prove  by  said  witnesses  all  the  facts  charged  in  the 
indictment;  that  said  witnesses  were  present  and  saw  the  appel- 
lant dispose  of  said  spirituous  liquors  to  said  John  Doe,  as 
alleged  in  said  indictment;  and  averred  his  inability  to  procure 
said  witnesses  at  said  term,  assigning  a  good  cause  therefor. 

The  defendant's  attorney,  in  open  cnurt.  then  otfered  to  admit 
that  the  witnesses  namecl  in  said  affidavit  would,  if  jiresent  in 
court,  testify  to  the  facts  set  forth  in  said  affidavit,  wlieivupon 
the  court  H'fused  to  (continue  the  case,  and  a  jury  was  duly 
iiii|iaiieled  to  try  the  cause. 

npon  the  trial  th(!  prosecution  ofTei-ed  to  read  in  evidence,  to 
the  jury,  the  said  atlhhivit  I'or  a  eoiitininmee,  to  which  the  appel- 
lant by  his  counsel,  objtieted.  'i'lie  objection  was  overruled  l)y 
the  court,  and  said  affidavit  was  read  to  the  jiiry,  and  apjudhint 
then  excepted.  This  is  all  the  evidence  which  is  set  out  in  the 
record.  The  appellant  was  convicted  and  sentenced  to  the 
|i('iiitentiary. 

After  the  jnilgtnent  and  sentence  by  the  court,  the  appellant, 
by  Ids  couns(d,  moved  the  court  I'or  a  new  irial,  assigning  as  the 


IW 


Mi 


444 


a:\iericax  criminal  reports. 


I^'i 


gronnds  thovefor  tlie  ruling  of  the  court  in  permitting  tlie  intro- 
duction, to  the  jury,  of  said  affidavit  for  a  continuance.  The 
court  overruled  the  motion,  and  the  appellant  ex('e}>tcd.  Upon 
this  record  and  state  of  facts,  the  appellant  asks  this  court  to 
reverse  said  judgment  and  sentence.  The  introduction  of  said 
affidavit  to  the  jury  is  the  error  which  is  assigned.  This  raises 
the  question,  whether  a  defendant,  indicted  for  a  niisdeincanor. 
which  is  the  case  at  bar,  can  waive  the  right  guarantitid  by  the 
sixth  article  of  the  amendment  to  the  constitution,  whicli  pni- 
vides  that  a  defendant,  in  all  criminal  prosecutions,  shall  ciijov 
the  right  "to  be  confronted  with  the  witnesses  against  him." 
Upon  an  examination  of  the  authorities,  we  have  no  doubt  that 
such  waiver  can  be  made.  In  the  early  <lays  of  the  coniiiion 
law,  when  a  person  indicted  for  crime  was  not  allowed  to  appear 
and  be  defended  by  counsel,  and  where  the  court  alone  was  his 
legal  adviser,  it  would  seem  that  he  could  waive  no  legal  right. 
But  this  has  long  since  ceased  to  be  the  law  in  Kiighmd,  and  was 
never  recognized  as  the  law  in  this  country — certainly  not  since 
the  adoption  of  the  amendment  to  the  (H)iistitution,  above  cited: 
1  Bishop's  Crim.  Proc,  4iiS,  and  cases  there  cited. 

The  counsel  for  the  appellant  insists  that  his  admission,  rela- 
tive to  the  affidavit  for  a  continuaiu^e,  extended  only  to  the  belief 
of  the  affiant  that  the  absent  witnesses  would  testify  as  therein 
set  forth.  Tliip  seems  to  be  more  of  a  technical  than  a  real  or 
legal  ol>jection.  The  a<lm!ssion  was,  that  the  witnesses  named  in 
the  affidavit,  if  present,  would  testify  to  the  fa(!ts  as  stated  in  the 
afHdavit,  which,  if  uncontrovertcd,  would  have  warrante(l  a  con- 
viction. This  must  have  been  the  admission  according  to  the 
understanding  of  the  court  and  counsel,  or  the  court  would  have 
entertained  the  motion  and  continued  the  case.  Then-fore  the 
admission  was  a  waiver,  by  the  <ai)pellant,  of  his  constitutional 
right  to  be  confronted  by  the  witnesses  against  him. 

Judgvient  ajjinned. 


4.U 


\f- 


CONLEY  V.  PEOPLE. 


445 


CoNLKY  V.  People. 

(80  111.,  230.) 

Practice  :    Continuance, 

Wliurc  the  iifflilavit  of  the  jirisoner  for  a  continuance  shows  that  he  wtis 
arrcsieil  on  I  he  'Jlh,  and  being  iinmediiitely  indicted,  was  brouglit  up  for 
trial  on  tlie  I4tli,  and  alleges  that  he  has  had  qo  opportunity  to  confer 
witli  counsel;  that  he  is  innocent  of  the  crime  charged,  and  that  he  can- 
not at  once  safely  proceed  to  trial  on  account  of  the  absence  from  the 
stat(!  of  a  witness  whose  name  lyid  nsidcnce  are  given,  and  the  attidavit 
shows  what  facts  the  prisoner  expccis  to  prove  by  the  witness,  and  the 
court  can  see  that  those  facts  arc  material  (o  the  di>fense,  and  the  affidavit 
further  alleges  that  the  witness  is  not  absent  through  the  procurement  of 
the  prisoner,  that  he  has  used  all  ]iossil)l(,'  diligence  in  endeavoring  to  get 
ready  lor  trial,  and  that  he  expeclud  to  be  able  to  procure  the  attendance 
of  the  witness  at  the  next  term  of  court,  it  is  error  to  refuse  a  continuance. 

Scorr,  Cii.  J.  Plaintiff  in  err(»r  was  indicted,  witli  otliers,  for 
the  crime  of  larceny,  in  ohtaiiiinf!;  money  by  a  p;anie  called 
'•three-card  monte,"  from  one  Edward  Nelson.  On  tlie  trial,  lie 
was  convicted,  and  sentenced  to  the  penitentiary  for  a  period  of 
three  years.  Previous  to  the  commencement  of  the  trial,  the 
accused  entered  a  motion  for  the  (continuance  of  the  cause,  which 
motion  was  based  on  affidavit.  That  motion  the  court  overruled 
and  its  decision  tliereon  is  the  only  error  assi<;ned. 

It  appt^ars  defendant  was  arrested  on  the  0th  day  of  June, 
('liar<i;ed  with  th(!  crime  mentioned  in  the  indictment,  and  was 
iiiiiiiediately  locked  in  the  police  station.  On  the  next  niornin<r, 
lie  was  taken  before  a  tnaiijistiate  for  examination.  On  his  ap|)lt- 
eatiiin,  the  hcariiioj  ol'  the  cause  was  pnstpotied  to  the  I'Jth  day  of 
tlie  saiiK!  nioiitli.  He  was  reinatided  to  prison.  In  the  mean 
time  the  present  indietiiieiit  was  found  by  the  o;rand  jury  of  the 
county,  whicih  happcMied  to  be  in  session. 

The  accused  states,  in  his  allidav  it.  tipon  which  his  motion  for 
a  ('(iiitiiiuaiiee  was  bitsed,  that  he  had  been  coiilined  in  jail  from 
the  time  of  his  arrest,  on  tin;  itth  day  of  June,  tmtil  the  niorninjj; 
of  the  14th  day  of  the  siime  month,  when  he  was  brought  out 
for  trial,  during";  which  time  li((  had  n(»  opportunity  to  confer 
with  c<»unsel  to  pre|)ar.(^  for  his  dtifeiise,  until  the  morniiio;  before 
the  trial.  He  alleges  his  entire  innociMice  of  the  crime  with 
which  ho  is  charged,  and  sln)ws  he  could  not  then  safely  proceed 


% 
t 


5 


446 


AMERICAN  CRIMINAL  REPORTS. 


to  trial,  on  account  of  the  absence  from  the  state  of  a  witness 
^\•ho.se  name  and  residence  he  gWes,  by  whom  he  expects  to  be 
able  to  prove  facts  indispensable  to  his  defense. 

On  examination,  we  find  the  facts  the  accused  expects  to  be 
able  to  prove  by  the  absent  witness  are  material  to  the  defense; 
tliat  the  witness  was  not  absent  by  the  consent  or  procuivineiit  of 
the  accused ;  that  he  had  used  every  possible  means  witliin  his 
power  to  prepare  for  trial,  and  that  he  expected  to  be  able  to 
procure  the  attendance  of  the  witness  at  the  next  term  of  the 
court. 

In  view  of  the  fact  the  accused  had  been  so  recently  arrostofl, 

and  no  opportunity  aiforded  him  to  prepare  for  trial,  we  think 

tJie  atlitlavit  shows  sufficient  reasons  for  continuinj:^  the  cause, 

:ind  (.'specially  as  that  was  the  first  and  only  application  that  had 

Itiicn  made.     It  was  error  in  tlie  court  to  overrule  the  motion  of 

the  accused  for  a  continu.i?'.ce,  fcr  which  the  judgment  nmst  be 

reversed,  and  the  cause  remanded. 

Judgment  reversed. 


IIowARP  V.  State. 

(25  Ohio  St.,  :t«it.) 

PilACTlCE:     Conrirtwn  of  mi»demcaiii<r  on  inilictment  for  felony — Erronroiis 

chiirge. 

On  ail  iiKUotniont  cniitainini?  oik;  count  for  robbery,  and  one  cliarsriiiLr  assault 
with  intent  to  rob,  liic  i-cs|>oih1ciiI    may  lie  eoiivietctl  of  assault  and  li.ii 
tery,  or  of  simple  assault  mi-rely,  aiul  it  is  error  for  the  conrt  to  rcrusc  vo 
to  insirnct  the  jury,  wlien  the  instrnetion  is  aslied  for  l)y  resiiomlcnt's 
counsel. 

This  was  a  ]>n»se('ution  for  robbery.  The  indictment  con- 
tained a  count  for  rolibcry,  and  also  a  count  for  tissatilt  with 
intent  to  coiimiit  robhcrv.  Tlie  (miuiiscI  for  the  (Icfi'tnlaiit 
rcfpiestcd  the  court  to  diar^'c  tiio  jurv  that,  iitKlcrtlic  iiKiictimiit, 
the  jury  might  timl  tbc  (h'fcii<!iiiit  guilty  of  assault  iind  battery, 
or  of  a  simph'  assnult.  'i'lic  ••oiirt  i'('f\isiMl  to  give  tliis  iiisti'iu'- 
tioii,  and  iiistructccl  the  jiifv  tlint  if  tlicv  found  tlic  (IfftMidaiit 
iTinocent  eitlier  of  roMicry  or  of  assault  with  inti-nd  to  rob,  tlicv 
must  accpiit.  To  this  ruling  an  »  xccptioii  was  reserved,  and  after 
judgment,  it  Wiis  assigiiiMJ  for  error.  The  jury  found  the 
respomhiut  guilty  of  assault  with  intent  to  rob. 


HOWARD  V.  STATE. 


447 


'*,'/  —  Krrniifous 


lli:x,  J.     AVe  think  tlie  court  en-ed  in  refusing  to  cliarge  the 
iiiry  iiP  requested,  and  in  tlie  instructions  given.     Robbery,  and 
assault  witli  intent  to  commit  robbery,  as  deiined  in  sections  15 
and  17  of  the  criTiies  act  (S.  and  C,  406,  407),  clearly  include  all 
tlie  elements  of  an  assault  and  battery,  or  of  an  assault  alone, 
both  of  which  are  offenses  of  a  degree  inferior  to  those  of  rob- 
licry,  and  of  assault  with  intent  to  commit  robbery ;  and,  hence, 
under  the  provisions  of  section  168  of  the  code  of  criminal  pro- 
cedure (66  Ohio  L.,  312),  the  plaintiff  in  error  might  have  been 
acquitted  of  the  robbery,  and  of  the  assault  with  intent  to  com- 
mit robbery,  and  convicted  of  the  inferior  offense.     Provisions 
similar  to  those  contained  in  section  168  of  the  criminal  code, 
exist  in  the  statutes  of  England,  and  in  many  of  the  states  of 
this  country,  and  are  simply  the  enactment  into  statutes  of  the 
well  settled  rules  of  the  common  law.     The  decisions,  both  before 
and  since  the  enactment  of  these  statutes,  have  been  uniform, 
respecting  the  right  to  convict  of  an   inferior  offense,   on  an 
indictment  for  a  8U])erior  one :     T/ie  People  v.  Jackson,  3  Will., 
02 ;  1  Arch.  Cr.  Pr.  and  PI.,  602.     In  Stewart  v.  The  State, 
5  Ohio,  241,  decided  in  banc  at  the  December  term.  1831,  the 
questions  were,  whether   the   court  of  common    pleas  erred  in 
refusing  to  charge  the  jury,  that  under  an  indictment  for  an 
.•issiiult  with  inter '^  to  kill,  they  might  find  the  defendant  guilty 
oF  simjile  assault  and  battery,  without  any  such  intent,  and  in 
instructing  the  jury  that  if  they  found  the  defendant  guilty  at 
all,  it  must  be  of  the  whole  accusation.     In  their  decision,  the 
court  say,  "  That  whore  an  accusation  for  a  crime  of  a  higher 
nature  includes  an  offense  of  a  lower  degree,  the  jury  may  acquit 
liiiu  of  the  graver  olfense,  and   return   him  guilty  of  the  less 
atrocious."  and,  hence,  on  the  grontid   t]);if  the  court  could  not 
ftiy  that  the  defendant  might  not  have  been  prejudiced  by  the 
instructii>n.  the  judgment  was  reversed.     For  a  similar  ruling, 
see  II,lhr  v.   7'/>r  Sf(if,\  'i'A  Ohio  St.,   .')S2,   decided  since  the 
adaption  of  the  tv>de  of  criiiiinid  procedure. 

The  ]ilaintiff  in  error,  in  this  case,  may  have  Km'u  prejudiced 
by  the  refusal  of  the  ccHirt  to  instriK't  the  jury  as  recpiosted,  and 
hv  the  instruction  given.  im<J.  therefore,  the  judgment  must  be 
reversed,  and  the  eaust^  remanded  for  ;•  i\('w  trial. 

,/u,/(ji)ii'iif  aceovflimjly. 


McIlvaink,  C.  .1.,  WM.rH,  WnriK  ami  IJii.mokk.  .1.1..  concurred. 


448 


AMEJilCAN  CRIMINAL  REPORTS. 


te^f 


m 


Mkredeth  v.  People. 

(84  111.,  47!).) 

Practiob:    Absence  of  judge  from  court  room  during  triai, 

Tae  trial  judge  must  occupy  the  bench  throughout  the  entire  trial,  which 
includes  the  iirgument  of  counsel.  Whcnt  it  is  nuulc  to  appear  lliai,  for 
two  days  during  the  argument,  the  judge  was  not  in  the  court  room,  but 
in  another  part  of  the  building,  engaged  in  other  business,  and  tiiat  incin 
bers  of  the  l)ar  presided  in  his  place,  the  verdict  will  be  set  aside,  ahiimmli 
this  was  done  by  consent  of  the  respondent's  counsel,  or  even  l»y  liis  own 
consent.  The  accused  cannot  waive  the  presence  of  the  judge  duriiii;  his 
trial. 

Scott,  J.  It  is  not  material  wliether  the  judf»e  of  the  circuit 
court  was  absent  from  tlie  court  room,  diiriiifj^  tlie  trial  of  the 
cause,  by  consent  of  counsel  for  the  defense;.  Neitiier  acciisod 
nor  his  counsel  for  him  could  consent,  the  ju<l<>:e  of  court,  before 
whom  the  cause  was  i)ein^  tried,  niii^ht  be  elsewhere  eMiplovol 
in  oth(!r  official  duties,  and  the  cause  be  presided  over  bj  iiiein- 
bers  of  the  bar,  selected  for  that  purpose.  It  makes  no  dillVr- 
ence  that  the  judije  was  in  another  part  of  the  same  buildiufr.  It  is 
no  less  error  than  if  he  had  l>een  in  aiu»ther  county.  Where  tlio 
judi;c  is  eiifraujed  in  trvinjjr  causes,  there  is  the  court,  and  he  can 
hold  no  coui't  eisewlu're,  by  proxy,  at  the  same  time. 

The  artfument  of  a  cause  is  as  much  a  part  of  the  trial  as  the 
hearinsr  of  evidence.  It  is  a  riufht  in  his  defense,  secured  by  the 
law  of  the  land,  of  which  a  citizen  can  not  be  deprived.  On  two 
ditferent  days  nieml)ers  of  the  bar  presiding  assumed  to  e.xercise 
judicial  functions,  by  ordering  adjournment  of  court. 

This  court  has  decided,  in  two  civil  cases,  a  raomber  of  the  bar, 
even  with  consent  of  parties,  can  not  exercise  judicial  powers 
under  cmr  cimstitution,  and  that  to  do  so,  where  it  apj)eai'8  in  tlio 
record,  is  error  of  such  gravity  as  will  warrant  a  reversal  of  tin; 
judgment  rendered:  //(xu/land  v.  ('ffw/,  SI  III..  .5t)f);  Bishop 
'v.  Nelson,  8;5  M,  41)5  ;  Cohh  n.  The  l\'opU\  S4  A/.,  p.  .511.  Tin; 
de(Msion  is  not  affected  by  the  consicjeratioii  that  the  iudire  was 
present  a  part  of  the  time  during  the  argument  of  the  case.  If  \w. 
(Miuld  be  absent  during  any  j)art  of  the  trial,  and  his  oflicial 
duties  could,  during  such  time,  bo  performcMl  by  a  iru'mber  of 


t^imm 


STATE  V.  BYBEE. 


449 


the  bar,  on  the  same  prineiple  his  absotice  during  the  entire  trial 
niiiiht  be  jiistitied, 

fcjerious  niiseoiidnct,  it  is  insisted,  was  permitted  in  the  pres- 
ence of  tlie  jury,  hurtful  to  the  cause  of  defendant;  but,  whether 
that  is  so  or  not,  the  absence  of  the  judge  from  the  court  room, 
engaged  in  otlier  jjidicial  labors,  for  a  part  of  two  days,  in  a  trial 
of  this  magnitude,  can  not  be  justilied  on  any  principle,  or  for 
any  cause. 

It  is  not  allowable  in  a  trial  involving  only  mere  property 
interests,  much  less  in  a  case  where  the  life  of  a  human  being 
depends  upon  the  issue. 

Accused  has  had  no  such  trial  as  the  constitution  guaranties 
to  every  person  charged  with  crime,  and  hence  the  conviction 
can  not  be  permitted  to  stand. 

Tlie  judgment  will  be  reversed,  and  the  cause  remanded. 

Judgment  reversed. 


i^ 


State  v.  Btbee. 

(17  Kas.,  462.) 

PiiACTirB:    Indictment — Coercing  jury  to  agres. 

The  iiidictmoiit  is  sutBcicnt.  althougli  it  does  not  specifically  allege  that  the 
crime  cliarirod  wiis  committed  in  tlie  state  of  Kansas. 

Tiie  jury  ouirlil  not  to  be  unfairly  or  unreasonably  urged  or  coerced  by  the 
trial  juilire  to  an  agreement.  Such  undue  urging  by  the  trial  judge  tends 
to  jjroduee  compromise  verdicts,  which,  in  criminal  trials,  ouglit  not  to 
be  tolerated.  IliUl,  that  the  language  of  the  trial  ju<lge,  in  this  case, 
tended  to  exert  an  undue  iiidueiiec  and  pressure  upon  the  jury  to  reach 
an  agreement,  and  i)rot)al)ly  di(i  exert  sucli  an  influence,  since  the  jury 
found  \\u'  def(Midant  guilty  of  assaidt  only,  in  a  case  where  it  was  clear 
he  should  either  have  been  convicted  of  assault  with  intent  to  commit 
murder,  or  wholly  acquitted. 

Rkiowek,  J.  Defendant  wiis  cotivictod  of  an  assault  in  the 
difitriot  court  of  Cliautaiupia  rouiitv,  and  from  that  conviction 
appeals  to  tliis  court,  lie  insists  that  the  information  is  insuffi- 
cient in  not  specilically  alleging  that  the  otTense  was  committed 
within  the  stiite  of  Kansas,  The  very  question  has  already  been 
presented  to  and  decided  by  this  court,  and  a  similar  information 
adjudged  sufticient :  The  State  v.  Walter,  14  Ktis.,  375.  We 
Vou  II.— 29 


460 


AMERICAN  CRIMINAL  REPORTS. 


B 


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i 

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1 

see  no  reason  to  alter  tlic  views  therein  expressed.  Tlie  princi- 
pal question,  however,  is  presented  by  the  following  bJH  of 
exce})tions : 

(Ti/lt'.)  September  term,  1876.  Be  it  remombcrod,  that 
after  the  case  had  been  snbmitted  to  the  jnry,  and  after  the  jury 
liad  deliberated  upon  their  verdict  several  hours,  they  were 
brought  into  court,  and  asked  by  tlie  court  if  they  had  agreed 
upon  a  verdict.  The  jury  liaving  answered  in  the  negative,  the 
court  addressed  them  in  substance  as  follows  : 

"  Gentlemen  of  the  jury :  I  am  led  to  infer,  from  the  char- 
acter of  your  communications  to  me,  that  you  think  it  inipos- 
sii)le  to  agree,  and  desire  to  be  discharged.  You  have  heard  the 
evidence,  and  the  case  has  been  ably  argued  by  counsel,  and  the 
court  has  affonled  every  facility  to  enable  you  to  understand  the 
case.  The  trial  has  been  very  expensive  to  the  public,  and  has 
occupied  a  great  deal  of  time  and  attention,  and  it  is  not  pos- 
sible that  it  will  ever  be  more  clearly  presented  than  it  has  been 
in  this  its  first  presentation  to  a  jury.  I  do  not  desire  to  try  the 
case  again.  It  is  often  considered  a  reflection  on  the  court,  and 
u]K)n  you,  as  jurors,  should  you  not  agree.  You  have  been 
impaneled  to  come  to  an  agreement,  not  to  wrangle  over  pet 
i(le;is  and  theories.  It  is  the  duty  of  the  jurj'  to  agree  if  pos- 
sible. The  theory  of  an  agreement  by  the  jury  is,  that  twelve 
minds  are  brought  as  nearly  together  as  it  is  possible  for  twelve 
minds  to  come.  To  bring  about  this  result,  it  is  necessary  for 
the  individual  juror  (in  matters  of  detail,  and  on  questions  of 
minor  importance),  to  defer  to  some  extent  to  his  fellow  jurors, 
and  to  surrender  some  of  his  own  ideas  and  opinions  to  wliat 
seems  to  be  an  overwhelming  sentiment  against  liim.  None  of  us 
are  infallil)le.  And  in  your  deliberations  you  should  realize  this, 
and  mutually  depend  upon  each  other.  And  in  the  considera- 
tion of  the  details  of  the  case,  you  should  meet  tlie  questions  as 
they  arise,  in  a  spirit  of  mutual  concession  and  forbearance,  and 
thus  gradually  as  you  proceed,  step  by  step,  to  arrive  at  a  con- 
clusion to  which  you  can  all  assent,  although,  if  left  to  yourselves, 
you  would  probably  come  to  a  dilferent  conclusion.  You  should 
bring  your  minds  together  like  the  mixing  of  different  ingredients 
by  an  apothecary,  .and  ascertain  what  is  the  product.  In  a  case 
of  this  importance,  I  feel  it  to  be  my  duty  to  afford  yon  the 
most  ample  opportunity  to  agree.     It  is  not  my  purpose  to  force 


STATE  V.  BYBEE. 


451 


you  to  a  verdict  not  in  accordunce  with  your  convictions.  My 
experience  with  juries  has  tiiu«:;lit  mo  that  they  often  agree  after 
tbey  have  imagined  it  impossible  to  do  so,  and  after  the  agree- 
ment they  have  been  surprised  tliat  they  ever  disagreed,  I  hope 
this  will  be  your  ex))erience.  I,  therefore,  urge  upon  you  to 
make  another  effort,  in  a  spirit  of  reconciliution  and  fairness  to 
each  other,  to  the  accused,  jind  to  the  pul)lic,  and  if  possible 
a<'ree  upon  a  verdict,  and  I  warn  you  not  to  think  of  being  dis- 
cliarged  for  some  time  to  come." 

To  the  giving  of  which  charge  or  instruction,  and  each  and 
every  part  thereof,  defendant  at  the  time  duly  excepted, ^/'«<, 
because  said  instruction  was  not  in  writing  [This  objection  was 
entered  after  the  delivery  of  the  foregoing  to  the  court,  but 
counsel  for  the  defendant  had  no  intimation  that  the  court 
intended  to  address  the  jury  as  above,  until  after  the  address 
was  delivered] ;  tsecond,  because  said  instruction,  and  each  and 
every  part  thereof,  is  error  in  law ;  third,  because  the  giving  of 
Buch  instruction,  after  the  retirement  of  said  jury  for  deliberation 
upon  their  verdict,  is  erroneous  and  unauthorized.  But  the 
court  overruled  such  objections,  and  each  of  the  same,  to  which 
the  defendant  at  the  time  duly  excepted,  and  still  excepts,  and 
asks  the  court  to  sign  this  his  bill  of  exceptions,  and  make  the 
same  part  of  the  record,  which  is  done  accordingly,  this  15th  of 

September,  1876. 

W.  P.  CAMPBELL.  Judge. 

We  are  constrained  to  believe,  after  a  careful  exumination  of 
the  record,  that  the  jury  were  misled  i)y  tiiis  instruction,  and  that 
there  ought  to  be  a  re-trial.  The  testimony  impresses  us  forcibly 
with  tlie  conviction,  that  the  defetidant  was  either  guilty  of  an 
offense  higher  than  that  of  which  he  was  found  guilty,  or  guiltless 
of  any  offense.  The  prosecuting  witness,  and  his  wife,  testified 
tliat  defendant  and  another  ])arty  came  to  their  house  in  the  night 
time,  and  standing  within  twenty  feet,  fired  several  shots  into 
the  building.  The  building  was  a  log  house,  one  story,  and  one 
room,  and  the  chinking  between  the  logs  had  dropped  out,  so 
that  the  cracks  between  the  logs  were  open,  from  the  widtli  of  a 
liand,  up.  Some  of  the  bullets  passed  tiirough  the  bed-tick  upon 
which  prosecuting  witness  and  his  wife  were  sleeping.  Tlicre 
was  testimony  also  of  a  previous  quarrel,  and  ill-feeling  between 
the  parties.     The  defendant  denied  the  shooting,  or  being  present 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


I^|2j8     |25 
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12.0 


Photograqiric 

Sciences 

Corporation 


as  WIST  MAIN  STRUT 

WnSTIR,N.Y.  14SM 

( 71* )  172-4303 


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;  '  "i  '  y 

'■\  i     '    ^- 

i  ■•!  v.-    1." 

m\ 

■■ 

• 

452 


A.MKRICAN  CRIMINAL  REl'ORTS. 


at  or  near  the  house  of  the  prosecuting  witness  that  night,  and 
testified  that  he  was  at  his  own  house  all  the  night.  There  was 
also  corroborating  testimony,  but  there  were  distinctly  the  two 
lines  of  evidence.  Now,  had  the  jury  credited  the  defendant's 
testimony,  they  could  not  have  done  otherwise  than  acquit ;  and 
it  seems  to  us,  that,  had  they  credited  the  testimony  of  the  state, 
they  must  liave  found  the  defendant  guilty  of  something  more 
than  a  mere  assault.  And  the  punishment  which  the  court 
imposed,  a  fine  of  five  hundred  dollars,  indicates  its  judgment  as 
to  the  aggravated  character  of  the  offense.  It  also  appears,  both 
from  the  bill  of  exceptions  and  from  the  other  parts  of  the 
record,  that  the  jury  were  for  a  long  time  unable  to  agree;  and 
if  we  may  credit  some  of  the  aftidav.'ts  filed  ux)on  the  motion  for 
a  new  trial,  were  evenly  divided.  It  seems  to  us,  under  these 
circumstances,  that  the  remarks  of  the  learned  court  ^  ore  calcu- 
lated to  exert  too  strong  a  pressure  upon  the  jury  in  favor  of  the 
agreement.  It  may  not  perhaps  be  possible  to  single  out  any 
particular  sentence,  and  say  that  this  is,  strictly  speaking,  and 
taken  by  itself,  erroneous,  and  sufticient  to  justify  a  reversal, 
though  there  are  some  that  seem  to  trespass  a  good  deal  on  the 
right  and  duty  of  each  juror  to  the  free  exercise  of  his  individ- 
ual judgment.  Yet  the  j-eneral  impression  of  these  instructions, 
as  we  read  them,  and  as  it  seems  to  us  must  have  been  received 
by  the  jury,  is,  that  the  jury  ought,  by  compromise  and  surren- 
der of  individual  convictions  if  necessary,  to  come  to  an  agree- 
ment, and  that  a  failure  to  do  so  would  be  an  imputation  upon 
both  jury  and  court.  Now,  while  a  court  may  properly  call  the 
attention  of  the  jury  to  many  matters  which  increase  the  desir- 
ability of  agreement,  such  as  the  time  already  taken,  the  iuiprol). 
ability  of  securing  additional  testimony,  the  general  public  benetit 
in  a  speedy  close  of  a  litigation,  and,  at  least  in  cases  where  the 
matters  at  stake  are  of  minor  importance,  the  question  of  expense 
to  the  parties  and  the  public;,  yet  no  juror  should  be  influenced 
to  a  verdict  by  a  fear  of  jjcrsonal  disgrace,  or  pecuniary  injury. 
No  juror  should  be  induced  to  agree  to  \i  verdict  by  a  fear  that  a 
fiiiluro  to  BO  agree  would  be  regarded  by  the  ])ublic  as  reflecting 
upon  either  his  intelligence,  or  his  integrity.  Personal  consider- 
ations should  never  be  permitted  to  inlhience  his  conclusions; 
and  the  thought  of  them  should  never  be  presented  to  him  a«  a 
motive  for  action.  Nor  do  wo  think  the  illustration  given  by 
the  learned  judge  a  happy  one.    A  verdict  is  tlie  expression  uf 


T' 


STATE  V.  BYBEE. 


453 


the  concnrrence  of  individual  jiulginoJits,  ratlior  than  the  product 
of  mixed  thouglits.  It  is  not  the  theory  of  jury  trials,  that  the 
individual  conclusions  of  the  jurors  should  be  added  up,  the  sum 
divided  by  twelve,  and  Jhe  quotient  declared  the  verdict,  but 
that  from  the  testimony  each  individual  juror  should  be  led  to 
the  same  conclusion ;  and  this  unanimous  conclusion  of  twelve 
different  minds,  is  the  certainty  of  fact  sought  in  the  law.  Espe- 
cially is  this  true  in  criminal  trials.  Here  should  no  thought  of 
compromise  be  tolerated. 

Before  the  state  can  fairly  demand  the  conviction  and  punish- 
ment of  an  alleged  criminal,  the  twelve  jurors  should  each  be  led 
from  the  testimony  to  a  clear  conviction  of  his  guilt ;  and  where 
six  jurors  believe  a  defendant  guilty  of  murder,  and  six  beli'^ve 
him  innocent  of  any  offense,  it  is  an  outrage  for  the  tweUe  to 
bring  in  a  compromise  verdict  of  guilty  of  manslaughter.  We 
feiir  that  something  of  this  kind  occurred  in  this  case,  and  that 
the  charge  above  quoted  was  mainly  instrumental  in  producing 
thie  result.  At  any  rate,  it  seems  to  us  clear,  that  such  would  be 
the  tendency  of  those  instructions ;  and  it  is  not  apparent  that  it 
did  not  have  that  effect.  For  this  error  the  judgment  must  be 
reversed,  and  the  case  remanded  with  instructions  to  grant  a  new 
trial. 

All  of  the  present  members  of  this  court  have  had  experience 
as  district  judges,  and  know  what  is  their  solicitude  for  the  agree- 
ment of  juries,  and  their  repugnance  to  see  the  labors  of  a  trial 
prove  abortive  through  the  failure  of  the  jury  to  agree.  We 
therefore  fully  appreciate  the  considerations  which  induced  these 
instrnctions  from  the  learned  judge,  and  fully  sympathize  with 
the  spirit  which  controlled  him,  but  are  nevertheless  constrained 
to  believe  that  he  passed  beyond  the  line  which  should  limit  the 
coniisols  and  instructions  of  a  court  to  a  jury,  and  that  thereby 
the  material  rights  o.'  the  defendant  were  prejudiced. 

All  the  justices  connirring. 


454  AMEUICAN  CKLMINAL  REPORTS. 

White  v.  State. 
(52  Miss.,  ai«.) 

Practice  :  Impartial  jury — Examination  on  voir  dire  by  judge — Preliminary 
examinatioii  into  competency  of  witness — Illiterate  juror — AsHuranrct  to 
accomp'icf — Right  of  counsel  to  private  conference  with  witmss  in  custody- 
Credibility  of  accomplice — FcUsus  in  nno,  falsus  in  omnibus. 

A  juror  who  stated  on  his  exiiminatiou  on  tlic  voir  dire  that  his  impression 
was  tliat  the  respondent  was  more  guilty  tlian  a  co-respondent  whom  lie 
knew  had  already  been  convicted  ;  that  it  was  merely  an  impression, 
founded  on  no  facts,  and  that  his  mind  was  perfectly  free  to  act  justly; 
that  his  impression  did  not  amount  to  an  opinion,  and  was  not  such  as 
would  in  the  least  influence  his  verdict,  was  held  competent  to  sit. 

The  trial  judge  may  properly  himself  examine  jurors  as  to  their  competency 
and  on  a  murder  trial  has  a  right  to  ask  the  jurors  if  they  are  opposed  to 
capital  punishment. 

Before  a  witness  testifies  in  chief,  counsel  for  the  respondent  has  the  right  to 
examine  her  for  the  purpose  of  showing  that  she  is  not  competent  to 
testify,  for  want  of  intellectual  capacity,  and  it  is  error  to  deny  him  this 
privilege  on  the  ground  that  the  judge  has  in  another  case  invcstigntvd 
the  matter  and  determined  her  to  be  competent. 

It  is  not  a  legal  ol)jection  to  a  juror,  in  the  absence  of  my  statute  requiring 
an  educational  qualiticution,  that  he  can  neither  read  nor  write. 

Ordinarily,  counsel  ought  to  have  the  right  to  '>nfer  in  i)rivate,  before  tlie 
trial,  with  the  witnesses  tluy  propose  to  call.  And  where  the  circum- 
stances  arc  such  that  this  right  can  be  exercised  only  by  the  consent  of 
the  court,  it  is  error  to  refuse  it. 

It  is  no  objection  to  the  competency  of  an  accomplice  who  is  called  as  a  wit- 
ness for  the  state  that  he  has  been  assured  by  the  judge  and  districl  attor- 
ney that  so  long  as  they  remain  in  oBlcc  his  testimony  shall  not  be  used 
against  him. 

The  credibility  of  an  accomplice  is  a  matter  solely  for  (ho  jury.  His  tisti- 
mouy  is  to  bo  weighed  with  great  caution,  jealousy  and  distrust,  but  ilie 
jury  are  to  judge  how  far  his  testimony  lias  been  corroborated,  and  they 
may  believe  him  without  corroboration. 

The  court  is  not  bound  to  instruct  the  jury  that  they  nuist  wholly  reject  the 
the  testimony  of  a  witness  who  has  sworn  falsely  in  one  material  particu- 
lar, even  though  such  false  swearing  was  willful.  The  matter  of  his 
credibility  as  to  other  matters  is  for  the  jury. 

Hon.  J.  A.  Orr,  Judjije.  At  tlio  Miircli  torin,  lS7fi,  of  tlie 
circuit  court  of  Colfax  county,  plaintiff  in  error  was  indicttMl 
jointly  with  one  Mar}>;arot  Givens,  (•liarjj;o<l  with  the  murder  ((f 
Hello  Givens,  the  infant  child  of  Marjfaret  Givens.  lie  w;m 
tried  at  the  same  term  of  the  court,  convicted,  and  sentenced  to 


tfr 


h   'Vi: 


WHITE  V.  STATE. 


455 


the  penitentiary  for  life.  On  the  trial,  at  the  instance  of  the 
state,  the  court,  among  other  instructions,  gave  the  following : 

"  12.  It  is  for  the  jury  to  determine,  if  they  find  the  defendant 
guilty  of  murder,  whether  it  shall  be  a  general  verdict  of  guilty, 
as  charged  in  the  bill  of  indictment,  in  which  the  death  penalty 
will  be  pronounced,  or  for  the  jury  to  find  the  defendant  guilty, 
and  adjudge  the  penalty  imprisonment  for  life  in  the  state  peni- 
tentiary." 

The  court  refused  to  give  the  following  instructions,  asked  by 
the  defendant,  to  wit : 

"  5.  If  the  jury  have  a  well-founded  doubt  as  to  the  guilt  of  the 
defendant,  tliey  will  find  a  verdict  of  not  guilty."  "  Unless  there 
has  been  the  testimony  of  at  least  one  credible  witness  introduced 
before  the  jury,  that  has  established  beyond  all  reasonable  doubt 
tliat  the  defendant  is  guilty  as  charged  in  the  indictment,  the 
jury  will  find  for  the  defendant ;  as  no  citizen  should  be  con- 
victed of  the  crime  of  murder  upon  the  testimony  of  witnesses, 
without  there  has  been  the  testimony  of  at  least  one  credible  wit- 
ness introduced  before  the  jury. 

"  8.  Where  a  witness  has  testified  falsely  as  to  one  material 
fact  on  the  trial  of  the  cause,  courts  and  juries  are  bound,  upon 
principles  of  law  and  morality  and  justice,  to  apply  the  maxim 
^falsm  in  uno,  falsus  in  omnibus'' — that  is,  false  in  one  thing, 
false  in  all." 

The  indictment  being  joint,  a  severance  was  had,  and  the 
co-defendant,  Margaret  Givens,  who  had  been  tried  and  convicted, 
but  not  yet  sentenced,  was  summoned  as  a  witness  for  White,  the 
accused,  and  broiight  into  court,  and  the  circuit  judge  refused  to 
allow  counsel  for  the  prisoner  to  have  any  conversation  with  the 
witness.  To  which  defendant  excepted.  When  M  'tilda  (livens 
was  ctfTcred  as  a  witness,  defendant's  counsel  proposed  to  examine 
her  touciiing  her  competency,  intellectually,  as  a  witness,  which 
was  refused  u|)on  the  ground  that  the  court  had,  on  a  former  trial 
in  another  case,  examined  the  witness  and  pronounced  her  compe- 
tent to  testify.  To  this  defendant  excepted.  After  conviction  a 
motion  was  made  for  a  new  trial,  refused  by  the  court,  and  this 
cause  came  to  this  court  on  writ  of  error. 

Dofe!idant  assigns  for  error,  in  substance,  the  following: 

1.  That  the  court  erred  in  refusing  to  permit  counsel  for 
accused  to  have  any  conversation  with  the  witness  and  co-defend- 
ant, Margaret  Givens. 


f; 


jK   v;;'  !''P.'    i 


4M 


m' 


456 


AMEUICAN  CUIMINAL  IlEPOUTS. 


2.  Ill  interrogating  tlie  jurors  before  cliallenge,  and  especially 
for  asking  each  juror  if  he  was  opposed  to  capital  punishment. 

3.  In  overruling  challenge,  for  cause,  of  William  Henry,  as 
not  an  impartial  juror. 

4.  In  overruling  challenge  of  juror  7ames  Brinker,  as  incom- 
petent, because  he  could  neither  read  nor  write. 

5.  In  overruling  motion  to  examine  the  witness,  Matilda 
Givens,  touching  her  competency  to  testify. 

6.  In  permitting  the  witness,  Matilda  Givens,  to  testify  as  to 
the  conduct  of  the  co-defendant,  Margaret  Givens,  towards  her 
mother. 

7.  In  permitting  Margaret  Givens  to  testify  in  the  cause. 

8.  In  modifying  defendant's  charges,  Nos.  1,  4  and  ('*. 

9.  In  refusing  defendant's  charges,  Nos.  3,  5,  7  and  8. 

10.  In  giving  the  state's  charges,  Nos.  5,  6,  7,  8,  9,  10, 11 
and  12. 

11.  In  overruling  motion  for  a  new  trial. 
I^'red  Beall,  for  plaintilf  in  error. 

The  action  of  the  court,  in  refusing  counsel  the  right  to  confer 
witli  his  witness,  is  without  a  parallel. 

The  court  had  no  autliority  to  iiitiTrogate  the  jurors  before 
challenge,  and,  in  the  next  place,  the  <|U(.'sti(ins  asked  were 
improper:  1  Ch.  Crim.  L.,  516;  /linff  v.  I' he  State^  5 
How.,  7-30. 

T!'  t  William  Henry  was  not  a  competent  jur(»r.  Sec  Snmh 
6W'.  13  S.  and  M.,  189;  IfdtiiH  Cone,  Ik,  500;  Williams's 
Ciixe,  32  ^fiss.,  3S!) ;  Noe's  Case,  4  How.,  330. 

James  Brinker  was  incompetent  as  a  juror.  He  could  lUMther 
read  nor  write,  and  the  Code  of  1871,  sec.  643,  recpiircs  all 
instructions  to  be  in  writing.     Construe  this  with  see.  724. 

It  was  error  to  refuse  to  exiuniiu!  Matilda  Givens  as  to  her 
competency  as  a  witness.     See  I*h.  Kv.,  19. 

It  was  error  to  permit  the  witness,  Matilda  Givens,  mother  of 
Margaret,  to  state  the  cotiduet  of  Margaret  toward  her.  after  her 
intimacy  with  the  accused.  This  question  was  iiieom])eteiit,  and 
could  only  prejudice  the  jury. 

Margaret  Givens  was  incompetent  as  a  witness,  because  of 
inducements  offered  her  to  testify.  The  action  of  the  court,  in 
modifying  defendant's  instructions,  is  not  sustained  by  the  Code, 
Bee.  643. 


WHITE  V.  STATE. 


457 


Defendant's  third  charge  should  liave  been  given :  1  Ph.  Ev., 
108-114;  Ret/  v.  The  State,  1  Iowa,  316. 

Defendant's  lifth  charge  should  have  been  given.  It  is  the 
law.    It  was  short  and  comprehensive. 

The  eighth  should  have  been  given.  See  Nemll  v.  Wright,  8 
Conn.,  3r;;J ;  6  Monroe,  136 ;  2  Wheat.,  4:57. 

A  new  trial  should  have  been  granted. 

Tiie  verdict  is  not  warranted  by  the  testimony  in  the  case,  and 
the  ruling  of  the  court,  on  the  points  of  law,  was  unsupported 
by  authority,  as  already  shown. 

G.  E.  liar r in.  Attorney- Oeneral,  for  the  state. 

As  to  the  interview  of  the  counsel  with  the  co-dofendant,  Mar- 
garet (xivens,  it  is  only  necessary  to  say  that  she  had  been  con- 
victed of  a  capital  otfense,  and  was  in  custody  of  the  sheriff, 
awaiting  her  sentence.  The  court  had  the  right  to  interrogate 
tlie  jurors,  of  its  own  motion  (see  Carpenter  s  Case,  4  How., 
I<i3),  and  especially  in  a  capital  case,  if  they  are  opposed  to  capi- 
tal punishment.  See  W'iiri<iiits\H  Case,  32  Miss.,  389;  Lewis's 
Case,  y  S.  and  M.,  115  ;  Damon!' s  Cane,  13  Wend.,  351 ;  Lesher'^s 
Case,  17  Serg.  and  Rawle,  155;  Jones's  Case, 'i  Blackf.,  475  ; 
Martin's  Case,  16  Oh'u),  364;  Williams's  Case,  3  Kelly,  459. 

The  juror  Brinker  was  competent. 

The  Code  does  not  require  that  he  should  read  and  write;  the 
quaiilications  are  fixed  by  the  Code  of  1871,  sec.  724,  and  nothing 
uiore  can  be  required. 

As  to  the  right  of  defendant  to  examine,  as  to  competency,  the 
witness  Matilda  Givens,  the  court  had  gone  through  that  exami- 
nation on  the  previous  day,  and  had  pronounced  her  competent. 
Tlie  court  has  the  power  to  modify  the  instructions  so  as  to  con- 
furin  them  to  the  law,  in  his  judgment :  Code  1871,  sec.  643 ; 
9  S.  and  M.,  2S4;  13  /*.,  202;  4  Ih.,  118. 

As  to  the  third  instruction  for  the  det'eiulant,  it  is  not  the  law 
(see  Fitzcox's  Case,  MS.  opinion),  and  the  court  is  not  bound 
to  repeat  instructions  already  given. 

As  to  the  motion  for  a  new  trial,  the  main  argument  is  that 
the  testimony  did  not  warrant  the  verdict.  I  think  it  does,  and 
til  J  question  for  this  court  is,  not  whether  the  verdict  is  right, 
lilt,  is  it  manifestly  wrong  ? 


i 
'    i 


SiMBAMi,  C.  J.     IIcMiry  White  was  jointly  indicted  witii  Mar- 
guiut  Givons,  for  the  murder  of  IV'lie  Clivens.  the  infant  child  of 


'J  si 


I  -v  « 

Iff 

m 


458 


AMERICAN  CRIMINAL  REPORT& 


Margaret.  They  severed  in  the  trial.  Ilenry  White,  havin* 
been  convicted  as  oharj^ed,  prosecutes  this  writ  of  error,  and 
makes  numerous  assignments  of  error.  We  will  notice  them  ia 
their  chronological  order. 

Several  exceptions  were  taken  to  the  rulings  of  the  court,  in 
the  organization  of  the  petit  jury,  William  Henry  was  chal- 
lenged, for  cause,  as  an  incompetent  juror.  On  his  voir  dire 
he  stated  "  that  he  had  been  in  the  court  house  a  short  time  on 
the  morning  of  the  commencement  of  Margaret  Givens'  trial; 
did  not  hear  any  of  the  testimony  in  the  cause,  but  had  been 
informed  by  the  deputy  sheriff  that  she  had  been  convicted,  and 
that  his  impression  was  that  Henry  White  was  more  guilty  than 
Margaret  Givens ;  it  was  merely  an  impression,  founded  on  no 
facts,  and  that  his  mind  was  perfectly  free  to  act  justly ;  that  his 
impression  did  not  amount  to  an  opinion,  and  was  not  such  as 
would  in  the  least  influence  his  verdict  in  deciding  upon  the  tes- 
timony in  the  cause." 

In  LogavbS  Case  (50  Miss.,  275),  an  attempt  was  made,  by  a?i 
examination  of  the  cases,  to  state  what  they  settled,  and  it  was 
decided  from  them  that  if  the  person  offered  as  a  juror  is  so 
"far  prejudiced  as  to  rc(|uire  testimony  to  .iiinul  a  previous 
opinion,  derived  from  whatever  source  or  origin,''  lie  is  incom- 
petent. "  If,  however,  the  opinion  is  founded  from  rumor,  and, 
upon  investigation,  shall  be  shown  not  to  be  fixed  so  as  to  croiite 
a  bias  or  j^rejudice  which  it  recpiires  testimony  to  reinov>  or 
overcome,  then  he  is  a  competent  juror."  The  increased  facili- 
ties, through  the  press  and  other  methods,  of  spreading  tiic  nar- 
ratives of  crime,  as  items  of  news,  especially  the  more  inttilli- 
gent  classes,  makes  it  inexpedient  to  lay  down  a  flxed  rule  wliidi 
would  exclude  persons  who  form  their  o])inions  from  newspa- 
P'>r8,  or  common  report  and  rumor,  unless  it  be  of  tliat  charactor 
which  imj)air8  the  impartiality  of  the  juror  by  engendering  a 
bias  or  prejudice  which  is  lixed,  and  would  require  testimony  to 
remove. 

The  juror  Henry  had  heard  none  of  the  testimony  on  the  trial 
of  Margaret  Givens,  or  at  any  other  time.  The  impression  he 
had  of  the  prisoner's  guilt  arose  altogetiier  from  other  sources, 
not  froni  the  facts — was  vague  and  evanescent,  and  would  not 
interfere  with  the  free  exercise  of  his  judgment,  and  would  not 
rctpiire  testimony  to  remove  it.  Wo  think  he  was  a  (;ompeteiit 
juror. 


'iWiff' 


m 


WHITE  V.  STATE. 


m 


Si.  T!ie  prisoner  excepted  to  the  rigljt  of  the  judi^e  to  examine 
the  members  of  the  venire  as  to  their  qualifications.  Among 
other  questions,  "  he  asked  eacli  juror  if  he  was  opposed  to  capi- 
tal punishment,  *  *  *  to  which  the  defendant  ol)jcctcd, 
upon  the  ground  that  it  was  not  a  proper  question  to  be  pro- 
pounded." 

The  jury  is  impaneled  under  the  supervision  of  the  court,  and 
it  is  the  duty  of  the  judge  to  see  that  it  is  composed  of  impartial 
persons.  It  was  said  in  People  v.  Damon,  13  Wend.,  354,  that 
the  court  may  set  aside  incompetent  jurors  at  any  time  before 
testimony  is  given.  That  rule  was  approved  and  acted  upon  in 
Leioiii's  Case,  9  S.  &  M.,  118,  and  for  the  very  reason  complained 
of  in  the  exception.  Haynes,  having  answered  "that  he  had 
formed  and  expressed  no  opinion,"  etc.,  was  tendered  to  the 
prisoner  as  a  juror,  when  he  voluntarily  stated  to  the  court  that 
"he  had  conscientious  scruples  about  finding  any  man  guilty  of 
murder."  The  court  thereupon  discharged  him,  without  chal- 
lenge either  on  the  part  of  the  state  or  the  accused,  and  that  was 
held  to  be  right.  In  Williams'  Case,  32  Miss.,  391,  the  jurors 
were  first  examined  by  the  court,  and  turned  over  to  the  district 
attorney  for  further  examination  as  to  qualifications.  The  exami- 
nation by  the  court  as  to  competency  was  approved,  the  court 
quoting  with  approval  the  doctrine  of  9  S.  &  M.,  119  :  "  In  all 
such  cases  it  is  the  duty  of  the  court  to  see  that  an  impartial 
jury  is  impaneled,  composed  of  men  above  all  exception."  To 
perform  that  duty,  the  ap|>n)ved  practice  lias  been  for  the  judge, 
in  the  first  iiistance,  to  examine  the  memlters  of  the  venire  f  the 
district  attorney  and  the  ])risoner  may  pursue  the  examination  so 
as  to  elicit  all  the  facts,  if  they  choose,  and  the  court  decides,  as 
a  (jiiestion  of  law,  whether  the  person  is  competent  or  not. 

It  was  not  error  for  the  circuit  judge  to  make  the  examination 
and  propound  the  particular  question.  Nor  was  it  error  for  the 
attorney  for  the  state  to  peremptorily  challenge  Collins  and  John- 
fion,  it  not  appearing  that  the  challenges  for  the  state  luid  been 
exhausted. 

3.  When  Matilda  Givens  was  offered  as  a  witness  by  the  state, 
the  ])ris()ner  proposed  to  examine  her  and  to  introduce  proof  to 
show  that  she  was  not  competent  to  testify  in  a  court  of  justice. 
"  The  court,  first  stating  that  said  Matilda  had  been  examined 
before  him  on  the  previous  day,  and  Iteing  himself  satisfied 
that  she  possessed  siilHcient  intellect  to  render  her  competent, 


i 


J!" 


J  ■■  ' ! 


P^fWWWpWT' 


ff<. 


460 


amh:ric.vn  ouiminal  reports. 


overruled  the  applic^ation  and  refused  to  exiiinine  the  witness," 
etc.  It  was  the  right  of  the  prisoner  to  test  the  competency  of 
the  witness,  either  as  to  reh'gious  hclief — M'liether  she  recognized 
tiie  obligation  of  an  oath — or  as  to  intellectual  capacity.  It  is 
answer  that  on  another  occasion  and  in  a  different  legal  proceed- 
ing the  judge  made  such  examination.  The  prisoner  was  a 
stranger  to  that  inquiry,  without  opportunity  to  oiler  testimony 
or  suggest  questions.  The  witness  may  have  been  comjxm  t/wntis 
on  one  day  and  a  lunatic  on  another.  The  question  is  as 
to  the  competency  at  the  time  she  was  offered  as  a  witness:  10 
Johns.,  362  ;  Gelhard  v.  Spingle^  15  Serg.  &  Kawle,  235 ;  Ki'a),^ 
V.  Ilullocky  7  Wheat.,  4.53.  This  ruling  was  erroneous.  Tlu-re 
is  nothing  in  the  objection  to  the  juror  Biiiker,  that  he  could 
not  read  or  write.  That  has  never  been  enacted  by  statute  as 
incompetency.  The  law  does  not  define  an  intellectual  or  educa- 
tional standard. 

The  refusal  of  the  court  to  allow  the  counsel  for  the  prisoner 
to  have  any  conversation  witli  Matilda  Givens,  she  having  boon 
summoned  as  a  witness  by  the  defendant,  and  being  in  the  ('<inrt 
house  when  the  trial  began,  is  assigned  for  error.  As  part  of  tho 
jury  trial  guarantied  by  the  constitution  is  the  right  to  process 
for  witnesses,  and  the  use  of  the  usual  and  ordinary  means  to 
prepare  for  the  trial,  it  is  usual,  and  often  importaiit,  that  the 
counsel  should  confer  with  tho  witnesses  that  he  proposes  to  call. 
It  cannot  be  in  the  power  of  a  judge  to  deny  to  the  counsel  «il"  a 
defendant,  charged  with  so  grave  a  crime  as  murder,  (toiiversa- 
tion  with  his  witnesses  generally.  That  is  essential  to  a  full  and 
complete  development  of  his  side  of  the  case.  Nor  could  the 
court  deprive  the  prisoner  of  the  benefit  of  Margaret  Ciivens'  testi- 
mony. Are  there  exceptional  reasons,  applicai)le  to  this  witness, 
which  would  justify  the  order?  The  prisoner  was  j<»iiitly 
indicted  with  her;  she  had  been  convicted,  and  was  awaiting  the 
judgment  of  the  court.  It  will  not  do  to  assume  that  the  con- 
versation in  progress  with  tho  witness  was  for  any  other  than  a 
legitimate  purpose.  Suppose  that  tho  counsel  proposed  to  intro- 
duce the  woman  to  prove  an  isolated  fact  important  to  the 
defense.  Would  it  not  be  proper  to  iiKpiire  in  advance  as  to  her 
knowledge?  It  might  bo,  if  she  knew  notliing  of  it,  that  another 
witness  might  be  sent  for.  Without  such  conversations  before- 
hand, the  prisoner  might  be  surprised  on  the  trial,  without  moans 
or  ability  then  to  repair  it  with  other  testimony.     There  may  be, 


WHITE  V.  STATE, 


Wi 


perhaps,  extreme  cases  of  witnesses  situated  like  Matilda  Givens, 
when  such  interviews  should  be  allowed  only  in  presence 
of  the  sheriff  or  some  officer  of  court  (but  that  point  does  not 
arise  here)  ;  but  in  no  state  of  a  case  should  the  court  refuse  the 
counsel  for  the  prisoner  an  opportunity  to  converse  with  the 
witness  which  he  has  subpoenaed,  and  proposes  to  call,  on  the 
subject  of  her  testimony.     In  this  there  was  error. 

4.  It  was  also  objected  that  the  same  witness  was  rendered 
incompetent  by  reason  of  the  assurances  of  the  judge  and  district 
attorney,  given  to  her  in  open  court,  that  whatever  statements 
she  made  in  testimony  should  not  be  used  against  her  so  long  as 
tliey  respectively  were  in  office,  but  further  than  that  they  would 
not  pledge  themselves.  The  judge  also  stated  that  he  could  offer 
her  no  inducement  to  testify  ;  that  she  would  not  be  required  to 
answer  questions  unless  she  was  perfectly  willing. 

The  witness  could  not  be  required  to  deliver  inculpatory  evi- 
dence, and  it  would  present  a  very  different  question  from  that 
before  us  if  her  adiuissions,  made  under  these  circumstances,  were 
resisted  in  a  trial  against  herself.  But,  if  she  chose  to  testify 
against  the  defendant,  he  can  not  object,  because  the  evidence 
criminates  herself.  It  was  a  privilege  personal  to  herself  to  tes- 
tify or  not.  If  she  waived  it,  the  prisoner  can  not  interpose  it 
to  shield  himself  from  the  damaging  effect  of  her  testimony. 

5.  Tiie  testimony  of  Matilda  Givens  in  reference  to  the  con- 
duct of  Mai'garet,  her  daughter,  towards  her,  was  also  objected  to. 
The  mother  spoke  of  the  filial  behavior  of  her  daughter,  before 
and  after  association  with  the  defendant,  in  connection  with  the 
great  influence  which  the  defendant  had  acquired  over  her.  The 
case  attempted  to  be  established  in  evidence  by  the  state  was,  that 
the  defendant  advised  and  persuaded  Margaret  to  drown  her 
infant,  and  was  present,  giving  countenance  and  encouragement, 
when  the  act  was  done.  It  was  legitimate  to  prove  the  influence 
of  the  prisoner  over  Margaret,  and,  as  tending  to  show  the  degree 
of  it,  that  Margaret  was  quite  young,  about  fifteen  years  of  age, 
and,  prior  to  her  acquaintance  witli  the  defendant,  had  been 
obedient  and  dutiful  to  her  mother,  but  that  the  maternal  control 
had  been  supplanted  by  the  will  and  influence  of  the  defendant, 
by  her  association  with  him.  The  testimony  was  properly 
admitted. 

6.  Exception  is  taken  to  the  refusal  of  the  court  to  grant  the 
fifth,  seventh  and  eighth  prayers  of  instruction  for  the  defendant. 


I' 


mi 


34 


4G2 


AMERICAN  CRIMINAL  REPORTS. 


It  lias  been  correctly  laid  down,  by  authority,  that  the  court  is 
bound  to  instruct  the  jury  on  all  the  points  reqiicstf»<l  by  the 
party  pertinent  to  the  case.  The  resi)unsibility  for  a  correct 
announceinent  of  the  law  is  upon  the  court.  It  would  scfm  to 
follow,  therefore,  if  the  written  requests  do  not,  in  the  opinion 
of  the  judge,  correctly  state  the  law  applicable  to  the  casu,  tlmt 
he  ought  to  so  modify  them  as  to  msdce  them  conform  tt>  tlio  law. 
Nor  has  the  defendant  just  ground  to  com]>lain  if  the  law  is 
truly  stated  on  the  moditication — so  that  it  covers  the  points. 

Nor,  further,  is  the  court  under  any  duty  to  repeat  instructions 
already  given,  which  fully  and  completely  cover  the  grounds 
embraced  in  the  one  asked.  This  observation  applies  to  the 
refusal  of  tlie  court  to  give  the  fifth  request  of  the  defendant. 
The  twelfth  instruction  granted  for  the  state  embraces  all  that 
is  in  tlie  fifth,  refused  to  the  defendant,  and  sets  forth  with  full- 
ness and  completeness,  the  law  upon  the  subject  of  doubts.  The 
whole  ground  had  already  been  covered,  and  it  could  have  been 
of  no  possible  prejudice  to  refuse  to  go  over  it  again. 

7.  It  is  not  easy  to  see  clearly  what  proposition  of  law  was 
intended  to  be  declared  in  the  seventh  instruction.  The  sub- 
stance is :  "  That,  unless  there  has  been  the  testimony  of  at  least 
one  credible  witness  introduced  before  the  jury,  that  has  08tal> 
lished  beyond  all  reasonable  doubt  that  the  defendant  is  guilty 
as  charged,  the  jury  will  find  for  the  defendant."  Tiie  bust  mciu- 
ber  of  it  assigns  the  reason.  If  the  meaning  be — as  the  gram- 
matical structure  of  the  language  indicates — that  one  crediMe 
witness  must  prove  every  fact  which  constitutes  the  crime,  it  is 
not  sound.  For  several  witnesses  may  prove  independent  facts 
which,  together,  establish  the  guilt,  but  the  testimony  of  one  or 
two  of  them  may  fail  to  prove  enough.  In  this  case  the  jury 
might  be  unwilling  to  rely  upon  the  testimony  of  Margaret,  a 
confederate  and  accomplice,  although  she  proved  every  fact  that 
makes  up  the  crime,  unless  she  was  supported  by  other  witnesses 
in  some  material  particulars.  The  testimony  of  an  accomplice 
should  be  weighed  with  great  caution,  jealousy  and  distrust,  but 
it  is  impossible  to  say,  as  a  question  of  law,  that  he  or  she  shall 
not  be  believed :  LithUr'^s  Case,  8  S.  «fe  M.,  228.  In  the  same 
case  the  court  says:  "The  jury  are  to  judge  how  far  his  testi- 
mony has  been  corroborated,  or  they  nuiy  believe  him,  if  they 
choose,  without  corroboration:"  Ibid.,  Fitzcox's  Case,  MS. 
opinion. 


I 


BEALL  V.  STATE. 


463 


The  eighth  prayer  is  too  narrow,  and  fails  to  submit  to  the 
consideration  of  the  jury  all  the  elements  that  make  up  the  rule 
of  law  on  the  subject.  It  assumes  that  if  a  witness  swears  falsely 
as  to  one  material  fact,  courts  and  juries  are  bound,  on  the  prin- 
ciples of  law,  to  apply  the  maxin,  ^^faUusin  uno^falsus  in  omni- 
lus^' — that  is,  as  we  construe  it,  to  disregard  the  testimony  in 
toto. 

The  defect  in  the  prayer  is  that  it  omits  to  tell  the  jury  that 
the  witneps  has  willfully  and  corruptly  sworn  falsely  as  to  a 
material  fact.  The  false  swearing  must  be  willful.  The  prayer 
does  not  exclude  the  idea  of  mistake  or  misconception.  Nor  is 
it  an  absolute  rule  of  law  that  the  jury  must  reject  the  witness 
in  toto.  It  throws  strong  suspicion  over  his  credibility,  and  may 
warrant  the  jury  to  disbelieve  him.  It  goes  to  his  credibility 
(cases  last  cited).     It  was  not  error  to  refuse  tlte  prayer.  • 

For  the  error  hereinbefore  indicated,  the  judgment  is  reversed. 


Beall  v.  State. 


(53  Ala.,  400.) 

PnACTiCB :    Indictment — Averment  of  ownei'ship. 

An  indictment  for  burglary,  which  alleges  a  fulonious  breaking  and  entering 
of  "the  dwelling-house  of  the  late  Juo.  Tate;  now,  etc.,  *  *  belong- 
ing to  the  estate  of  the  late  Jno.  Tate,"  and  in  the  second  count,  "the 
dwelling-house  of  the  estate  of  the  late  Jno.  Tate,"  is  fatally  defective 
in  not  showing  whose  house  was  broken  into.  John  Tate  being  dead, 
the  house  must  of  necessity  belong  to  some  one  else,  and  this,  for  all  that 
appears  in  the  indictment,  may  bo  the  respondent. 

Brickell,  C.  J.  The  indictment  is  for  burglary,  averring  a 
breaking  and  entry,  in  the  first  count,  "  of  the  dwelling-house  of 
tlie  late  Jno.  Tate,  said  house  now,  and  at  the  time  of  the  oifense 
committed,  belonging  to  the  estate  of  the  late  Jno.  Tate  ;"  and, 
in  the  second  count,  it  is  averred  to  have  been  "  the  dwelling-house 
of  the  estate  of  the  late  Jno.  Tate."  The  common  law  requires 
that  an  indictment  for  burglary  must  lay,  with  precision,  the 
ownership  of  the  house  in  which  the  offense  has  been  committed, 
and  the  proof  must  conform  to  the  averniont :  2  Lead.  Cr.  Cases, 
53 ;  2  IJish.  Cr.  Pr.,  sees.  135-G-7-8 ;  2  Wheat.  Am.  Cr.  Law, 
see.  1555,  ei  seq.;  1  Buss.  Crimes,  800,  The  statutes  have  not 
abrogated  or  modified  this  rule;  on  the  contrary,  the  form  of 


'    W '■' 


^■tf 


uk 


h^k 


:'  '■' 
X'. 
fv 
kK 

■S'( 


■i 


464 


AMERICAN  CRIMINAL  RKPORTS. 


indictment  prescril)e(l  contains  an  express  averment  of  owner- 
ship :     R.  C,  p.  811,  form  No.  35. 

There  is  no  averment  of  ownersln'p  in  eitlier  connt  of  this 
indicttnent.  That  which  is  intended  as  siurli  an  averment  shows 
on  its  face  that  the  ownership  is  not  disclosed.  If  the  person 
described  as  Jno.  Tate  is  dead,  and  that  is  tlie  intendment,  and 
during  life  was  the  owner  of  the  dwelling,  on  his  death  it 
devolved  on  his  personal  representatives,  heirs  or  devisees. 
Who  tliese  are  is  not  averred.  In  Pleasant  v.  State,  17  Ala., 
190,  the  indictment  described  the  defendant  as  a  slave,  "  the 
property  of  the  late  William  Copeland."  Dargan,  C.  J.,  said : 
"  Is  the  ownership  of  the  accused  sufficiently  averred  ?  Tlie 
allegation  is  that  Pleasant,  a  slave,  "the  property  of  the  hue 
William  Copeland."  In  the  sense  in  which  the  adjectivi'  hitfi 
is  here  used,  it  means  existing  not  long  ago,  but  now  departed 
this  life.  This  is  the  meaning  all  would  give  it,  ami  no  donht  is 
the  meaning  intended  to  be  attached  to  it  by  the  pleader.  The 
accused  is,  therefore,  alleged  to  be  the  property  of  one  not  in 
life.  This  cannot  be,  for  the  dead  can  own  no  property.  Death 
strips  us  of  all  rights  and  title  to  ])roperty,  and  easts  them  on 
the  living,  who  alone  can  own  property.  Tlie  ownersliip  of  the 
accused  is,  therefore,  not  alleged,  and  the  indictment  is,  conso- 
qneiitly  defective."  It  must  be  observed  of  this  case,  that  the 
ownershi])  of  the  accused,  nor  his  .sfafuti,  was  an  ingredient  of 
the  olfeiise  with  which  he  was  charged.  The  only  purpose  of 
its  .averment  was,  that  in  the  event  of  convicti(»n,  it  shuuM  he 
ascertained  to  whom  the  state  must  make  compensation  for  the 
loss  of  property  on  his  execution.  The  house  broken  and 
entered  must  not  be  the  house  of  the  accused,  into  which  he 
had  the  lawful  right  of  entry.  The  ownersiiij)  is  as  essential  ns 
the  ownersliip  of  goods  on  an  indictment  for  larceny,  or  on  any 
other  indictnu^nt  for  an  offense  against  property. 

It  is  a  well-known  rule  of  criminal  j>leading,  that  when  it 
bccotnes  necessary  to  aver  the  ownership  of  i)roperty  which 
resided  in  one  dead,  while  living,  if  it  is  personal  property,  pass- 
ing to  the  personal  representative,  of  which  he  has  custody,  actu- 
ally or  constructively,  the  ownership  must  be  laid  in  him.  If 
real  property,  then  in  the  heir  or  devisee ;  and  it  is  generally 
sufficient  to  aver  it  in  the  actual  possessor.  An  illustration, 
which  clings  to  the  memory  of  the  lawyer,  is  given  by  Lonl 
Halo:      "If    A,   dying,   be   buried,   and   B   opens  the    grave 


-rp^ 


HOUSH  V.  PEOPLE. 


465 


in  the  night  time  and  steals  the  winding  sheet,  the  indict- 
ment cannot  suppose  them  the  goods  of  the  dead  man,  but  of 
the  executors,  administrators,  or,  ordinary,  as  the  case  falls  out : " 
2  Hale's  Pleas  Cr.,  181.  The  indictment  was  insuflBcient.  and 
tlie  conviction  erroneous.  For  aught  that  appears  on  the  face  of 
tliis  indictment,  the  accused  may  have  been  the  owner  of  the 
dwelling-house.  He  may  have  been  the  heir,  or  devisee,  or  the 
personal  representative  of  the  deceased,  having  its  possession, 
and  the  lawful  right  of  entry.  Such  a  presumption  is  not 
excluded  by  the  averments.  The  cases  of  Andersoti  v.  The 
State,  48  Ala.,  665,  and  Murray  tfe  Bell  v.  The  State,  lb.,  675, 
it  may  be,  induced  the  framing  of  the  indictment  in  its  present 
form.  These  cases  cannot  be  supported  on  principle  or  prece- 
dent, and  are  introductive  of  a  laxity  in  criminal  pleading  that 
ought  not  to  be  tolerated,  and  are  consequently  overruled. 

The  judgment  is  reversed  and  the  cause  remanded,  but  the 
prisoner  will  remain  in  custody  until  discharged  by  due  course 
of  law. 


Ilousn  v.  Pkoi'le. 


y,  or  on  any 


(75  111..  487.) 

Pkactice;     Warmiif — Escape —  Officer  permitting  an  escape  not  liable  if  his 
warrant  is  void  —  Defective  complaint. 

If  the  warrant  by  virtue  of  which  an  officer  receives  a  prisoner  is  void,  because 
the  magistrate  hail  no  jurisdiction  to  issue  tlie  warrant  on  the  affldavit  made 
before  him,  tlie  officer  is  not  liable  to  prosecution  for  voluntarily  permit- 
ting the  prisoner  to  escape  out  of  his  custody,  although  the  warrant  is 
regular  on  its  face.  A  warrant  regular  on  its  face,  although  illegally 
issued,  is  a  protection  to  the  otlicer  who  has  no  Itnowledge  of  the  ille- 
gality of  its  issue,  l)ut  such  a  warrant  imposes  uo  duty  upon  him. 

No  warrant  can  legally  l)e  issued  until  a  sworn  complaint  is  made,  charging 
that  a  crime  lias  been  committed,  and  tliat  there  is  probably  cause  to  sus- 
pect that  tlie  person  chaigcd  witli  the  crime  committed  it. 

Tlie  affldavit  on  which  the  warrant  issued  in  this  case  is  held  fatally  defective. 

ScnoLFiKLP,  J.  Appellant  was  convicted,  in  the  court  below, 
for  permitting  the  escape  of  a  prisoner  who  had  been  committed 
to  his  custody  in  his  official  capacity  of  constable.  The  affidavit 
upon  which  the  warrant,  by  virtue  of  which  the  prisoner  waa 
arretted,  was  issued,  is  as  follows : 
Vol.  II.— ao 


^ 


K  .p 


46G 


AMERICAN  CRIMINAL  REPORTS. 


■S8. 


"STATE  OF  ILLINOIS, 
Knox  County. 

"  The  complaint  and  information  of  Georf^e  Iluggins,  of  Knox 

township,  in  said  county,  made  before  James  Moore,  Esq.,  one 

of  the  justices  of  the  peace  in  and  for  said  county,  on  tlie  sixth 

day  of  May,  1873,  who,  being  duly  sworn,  upon  his  oath  says 

that,  in  Knox  township,  in  the  said  county,  on  the  25th  day  of 

April,  1873,  he  had  a  saddle  and  sheep  skin  stolen  from  his 

barn  in  said  place,  and  that  he  verily  believes  they  are  now  in 

possession  of  a  man,  name  unknown — a  large  size  man,  riding  a 

sorrel  mare  with  a  light  mane  and  tail,  and  young  colt  running 

after,  when  last  seen — who  stayed  last  night  at  Edmund  Rus- 

sel's,  in  Persifer  township,  this   county.     He  therefore  prays 

that  the  said  unknown  described  man  may  be  arrested  and  dealt 

with  according  to  law. 

"GEORGE  II UGGINS. 
"  Subscribed  and  sworn  to,  before  me,  ) 
this  sixth  day  of  May,  1B73.  ) 

"JAMES  MOORE, 

"  Justice  of  tfie  Peace," 

The  warrant  recites,  among  other  things,  that  complaint  had 
been  made,  under  oatli,  by  the  complainant,  that  he  "liad  just 
and  reasonable  grounds  to  suspect  that  a  certain  unknown  man 
(then  follows  the  description  given  of  him  in  the  atHdavit)  is 
guilty  of  said  theft,  or  larceny,  of  saddle  and  sheep  skin,  as  he 
verily  believes."  The  warrant  is,  in  other  respects,  in  the  usual 
form,  and  no  objection  is  taken  to  it,  except  such  as  is  predieati'il 
on  the  insufficiency  of  the  affidavit. 

The  warrant  was  placed  in  the  hands  of  a  constable  named 
Thurman  to  execute.  Thurman,  after  receiving  the  warrant, 
arrested  a  man  answering  to  the  description  therein  given,  ami 
subsequently  delivered  the  warrant  to  appellant,  and  placed  the 
prisoner  in  his  custody. 

Tiie  first  and  third  instructions  given  by  the  court,  at  the 
instance  of  the  people,  embrace  the  only  questions  necessary  to  lie 
considered,  and  arc;  as  follows : 

"let.  The  court  instructs  the  jury  that  the  warrant  introduwd 
in  evidence  in  this  case  is  a  legal  warrant,  and  will  be  so  regarded 
by  the  jury. 

"  3d.  The  jury  are  instructed  that,  if  they  shall  beliovt!  from 
the  evidence,  beyond  a  reasonable  doubt,  tliat  on  the  sixth  day  nf 


.VIJ,    I  ..-,,  I  »m 


11, 


HOUSH  ».  PEOPLE. 


i  IIUGOINS. 


4fi7 


May,  A.  D.  1873,  tlie  warrant  introduced  in  evidence  in  this 
oase  was  issued  by  James  Moore,  a  justice  of  the  peace  of  said 
Knox  county,  in  the  state  of  Illinois,  on  the  complaint  of  George 
Huggins,  for  the  arrest  of  *he  person  described  therein,  for  a 
<!riminal  offense,  and  that  said  warrant  was  delivered  to  Fletcher 
Thurman,  a  constable  of  said  Knox  county,  to  arrest  the  person 
named  therein,  and  that  said  Thnniian,  as  such  constable,  and 
under  and  by  virtue  of  said  warrant,  did  arrest  one  William 
Hughes,  and  that  said  Hughes  was  the  person  described  in  said 
waiTant;  and  that  said  Thurman  afterwards  delivered  the  said 
warrant,  and  the  body  of  said  prisoner  Hughes,  into  the  legal 
custody  of  the  defendant,  Jas.  D.  IJoush,  then  and  there  a  con- 
stable of  said  Knox  county,  and  that  said  Jas.  D.  Housh  willfully 
failed  and  neglected  to  bring  the  said  prisoner  before  said  James 
Moore,  the  officer  who  issued  said  warrant,  or  before  any  other 
justice  of  the  peace,  in  his  ai  ence,  as  required  by  law,  but 
voluntarily  suffered  and  permitted  said  prisoner,  before  convic- 
tion, to  escape  and  go  at  large,  in  manner  and  form  as  charged  in 
the  indictment,  then  the  jury,  if  true  to  their  oaths,  must  find 
the  defendant  guilty." 

Section  6,  article  2,  of  the  constitution,  is  :  "  The  right  of  the 
people  to  be  secure  in  their  persons,  houses,  ])aper8  and  effects, 
against  unreasonable  searches  and  seizures,  shall  not  be  violated  ; 
ami  no  warrant  shall  issue  without  probable  cause,  supported  by 
affidavit,  particularly  describing  the  place  to  be  searched,  and  the 
ptM'son  or  thing  to  be  seized."  And  section  four  of  division 
eighteenth,  of  the  Criminal  Code  (Gross'  Stat.  18()9,  p.  208)  pro- 
vides that  it  shall  be  lawful  for  any  judge  of  the  supreme  or  cir- 
cuit court,  in  his  circuit,  and  any  justice  of  the  peace,  in  his 
county,  "  upon  oath  or  affirmation  being  made  before  him,  that 
any  person  or  persons  have  committed  any  criminal  offense  in 
tliis  state,  or  that  a  criminal  offense  has  been  committed,  and  tliat 
the  witness  or  witnesses  have  just  and  reasonable  grounds  to  sus- 
]iect  that  such  person  or  persons  have  committed  the  same,  to 
\m\c  his  warrant  under  his  hand,"  etc. 

It  will  have  bean  observed  that  the  affidavit  in  this  record 
wholly  omits  to  stJite  either  that  the  person  therein  described 
coininitted  the  offense  for  which  the  warrant  for  his  arrest  was 
issued,  or  that  the  person  at  whose  instance  and  upon  whose 
C'lMtphiint  it  was  issued,  had  just  and  reasonable  grounds  to  sus- 
pect, or  did  in  fact  suspect,  that  he  was  guilty  of  such  offense. 


m 


:t 


'i.j 


468 


AMERICAN  CHIMIN AL  REPORTS. 


It  is  true  that  the  recent  possession  of  stolen  property,  unex- 
plained, raises  a  presumption  that  the  person  in  possession  stole 
it ;  but  this  is  only  a  rule  of  evidence,  and  the  presumption  may 
be  overcome  by  proof  showing  that  the  possession  is  not  incon- 
sistent with  an  honest  intention.  The  citizen  is,  both  by  the 
constitution  and  the  law,  entitled  to  be  free  from  arrest,  by  war- 
rant on  a  criminal  charge,  until  a  complaint  under  oath  or  affii-nia- 
tion  is  made,  charging  that  a  crime  has  been  committed,  and  that 
there  is  probable  cause  to  suspect  that  he  committed  the  same. 
For  aught  that  appears  in  this  affidavit,  the  prisoner  may  have 
honestly  come  to  the  possession  of  the  property  claimed  to  have 
been  stolen,  by  purchase,  or  by  borrowing,  or  by  finding;  and 
this  may  have  been  known  to  the  person  making  the  aflidavit. 
There  is  nothing  in  the  aflBdavit  necessarily  inconsistent  with  this 
idea.  "Without  saying  more,  it  is  sufficient  that,  in  our  opinioii, 
the  affidavit  was  insufficient  to  give  jurisdiction  for  the  pnrT)o.<e 
of  issuing  the  warrant.  A  majority  of  the  court  are  of  opinion 
that,  the  affidavit  being  insufficient,  the  prisoner  was  improperly 
deprived  of  his  liberty,  and  he  was  justified  in  asserting  his  right 
to  freedom,  guarantied  to  him  by  the  constitution  and  the  law, 
by  refusing  to  submit  to  the  warrant.  In  breaking  away  from 
the  officer's  custody  he  committed  no  offense  :  The  State  v. 
Leach,  7  Conn.,  752. 

The  rule,  as  found  in  treatises  upon  criminal  law,  is,  that 
whenever  an  imprisonment  is  so  far  irregular  that  it  is  no  offeiii^e 
in  the  prisoner  to  break  from  it  by  force,  it  will  be  no  offensi;  in 
the  officer  to  suffer  him  to  escape  :  2  Hawk.  P.  C,  ch.  21),  sic. 
2 ;  Roscoe's  Criminal  Evidence,  459 ;  1  Russell  on  Crimes,  417. 

It  is  true,  as  contended  by  the  state  attorney,  that  as  the  war- 
rant was  regular  on  its  face,  the  officer  who  made  the  arrest,  and 
the  appellant  who  received  the  custody  of  the  prisoner,  woniil 
be  protected  in  an  action  for  assault  and  false  imprisonment,  in 
consequence  of  his  arrest  and  deprivation  of  liberty,  but  it  does 
not  follow  therefrom  that  appellant  was  bound  to  obey  the  war- 
rant. The  somewhat  anomalous  condition  that  a  sheriff  or  con- 
stable occupies  in  such  cases  is  well  explained  in  Tuttle  et  al.  v. 
Wilson,  24  111.,  5G1. 

It  is  there  said  :  "The  rule  that  a  ministerial  officer  is  pro- 
tected in  the  execution  of  process  issued  by  a  court,  or  officer 
having  jurisdiction  of  the  subject  matter,  and  of  the  process,  if 
it  be  regular  on  its  face,  and  does  not  disclose  a  want  of  jurisdic- 


pk-— 


STATE  V.  DOCKSTADER 


469 


operty,  unex- 

ssession  stole 

iimption  may 

is  not  incon- 

both  by  the 

•rest,  by  wai*- 

tb  oraffiniia- 

ted,  and  that 

ed  the  same. 

ler  may  have 

imed  to  have 

finding;  and 

the  affidavit. 

;ent  with  tliis 

our  opinion, 

the  purpose 

re  of  opinion 

18  improperly 

ting  liis  right 

and  the  law, 

g  away  from 

The  /State  v. 

law,  is,  that 
t  is  no  offense 

no  offense  in 
I.,  cb.  2'J,  sec. 
/rimes,  417. 
at  as  the  war- 
lie  arrest,  and 
■isoner,  wonki 
►risonment,  in 
;y,  but  it  does 
obey  the  war- 
sheriff  or  con- 
fuitle  et  al.  v, 

officer  is  pro- 
urt,  or  officer 
the  process,  if 
nt  of  jurisdic- 


tion, is  a  rule  of  protection  merely,  and  beyond  that  confers  no 
right ;  it  is  held  to  be  personal  to  the  officer  himself,  and  affords 
no  shelter  to  the  wrong-doer,  under  color  of  whose  process,  if  it 
be  void,  the  officer  is  called  upon  to  act. 

"  Such  an  officer  may  stop  in  the  execution  of  process,  regular 
on  its  face,  whenever  he  becomes  satisfied  thore  is  a  want  of  juris- 
diction in  the  officer  or  court  issuing  it;  and  if  sued  for  neglect 
of  duty,  may  show  in  his  defense  such  want  of  jurisdiction  : 
Earl  V.  Camp  et  al.,  16  Wend.,  562.  He  can,  if  he  chooses,  take 
the  responsibility  of  determining  the  question  of  jurisdiction,  oi* 
any  other  question  to  which  the  process  may  give  rise." 

The  justice  of  the  peace  not  having  been  invested  with  juris- 
diction by  the  affidavit  to  issue  the  warrant,  it  was  void,  and  it 
necessarily  follows  that  the  court  erred  in  giving  the  instructions, 
and  that  appellant's  conviction  was  improper.  The  judgment  i* 
roN'ersed  and  the  defendant  discharged. 

Judgment  reversed. 


State  v.  Dookstader. 

(42  Iowa,  436.) 

Practice  :    Failure  of  defendant  to  rail  witnesses  to  his  character — Birrone<m$ 

charge. 

The  failure  of  a  defendant  to  call  witnesses  to  prove  a  previous  good  cbariic- 
ler,  does  not  justify  any  presumption  against  him,  and  it  is  error  for  the 
court  to  instruct  the  jury  that  tliey  have  a  right  to  consider  it  as  a  cir 
cumstanco  against  him. 

The  defendant  was  indicted  for  the  crime  of  receiving  and 
aiding  in  concealing  stolen  goods.  The  court,  among  other 
instructions,  gave  the  following  :  "  Where  evidence  is  produced 
by  the  state  against  a  defendant  indicted  for  crime,  of  facts 
which,  if  true,  affect  or  cast  a  shadow  on  his  character  for  lion 
esty,  the  defendant  has  a  right  to  produce  evidence  to  show  that 
his  general  character  among  his  neighbors  and  acquaintances  is 
good,  as  tending  to  explain  what  may  appear  dark  against  him. 
If  he  does  not  (fhooae  to  do  so,  the  jury  must  consider  the  case 
with  the  shadow  which  is  thus  cast  on  his  character.  In  cases 
where  *he  evidence  of  guilt  is  circumstantial  only,  evidence  of 
previous  good  chnraotpr  of  the  accused  is  valuable  to  bis  dofonfo. 


f    '9f^-"-lf^'''-         •''i^    ■ 


470 


AMERICAN  CRIMINAL  UEP0RT8. 


and  a  failure  on  his  j>iirt  to  ])ro(lnco  it,  when  it  is  clearly  in  liis 
power,  if  his  character  is  in  fact  ^ood,  is  a  circumstance  in-opci- 
for  the  jury  to  consider  with  the  other  evidence  of  the  ciisu." 
To  this  instruction  the  defendant  excepted.  The  defeiulimt, 
having  been  found  guilty  and  sentenced,  a])peal8. 

D.  W.  Poindexter  and  L.  M.  Race,  for  appellant. 

M.  E.  C^itts,  for  appellee. 

AuAMs,  J.  Where  a  person  is  charged  with  a  crime,  tlio 
failure  to  call  witnesses  to  prove  his  general  good  character 
raises  no  presumption  against  it :  State  «.  Kahneh,  \^SS  Iowa. 
277;  State  v.  O'lkill,  7  Iredell,  251;  People  v.  JioUin,  1  Dana, 
282 ;  People  v.   White,  2i  Wendell,  52(). 

jK evened. 


Sparrenbkkger  v.   State. 


(53  Ala.,  481.) 

Pkactice  :    Indictment  mutt  be  founded  on  legal  evidence  —  S/iop  not  the  same  at 

nt/ire. 

An  indictment  can  only  be  based  upon  le^jral  evidence  nddimcd  before  tlic 
grand  jury.  The  grand  jury  has  no  riijlit  to  find  an  indictment,  u|)nii 
another  indictment  against  the  respondent  for  the  same  olTense  loiiiid  by 
anotlier  grand  jury  at  a  previous  term,  whieli  iiad  been  (piasbed.  And, 
on  a  motion  to  quash,  supported  i)y  evidence  that  the  indictmciii  \v:is 
found  solely  on  the  former  indictment,  and  without  any  other  evidunci', 
it  should  be  quashed.     See  note  to  Stnfe  r.  I^ichmn.  milr,  p.  V.Vi. 

The  obje(;tion  to  tlic  validity  of  an  indictnient,  on  the  giouiid  that  it  was 
found  by  the  grand  jury  without  any  legal  evidence,  nuist  be  taken  by  w 
motion  to  quash,  and  not  by  a  plea  in  abatement. 

The  word  shop  is  not  eqiiivalent  to  the  word  store,  ami  iiidietm(!nt  eiiaririiiir 
the  defendant  with  keeping  "open  shoi)"on  Smidiiy,  does  not  elian,'(; 
any  offense  under  a  statute  prohibiting  keeping  "  open  (store  "  on  Sunday. 

Bktokkm.,  C.  J.  It  is  a  well  estalj'shed  rule  of  criminal 
pleading,  that  if  an  offense  is  purely  stiitutory,  the  indictment 
ratist  pursue  the  words  of  the  statute,  so  as  to  bring  the  (lel'cinl- 
ant  precisely  within  it.  There  is  much  conflict  of  authority  as 
to  the  precision  which  must  be  observed  in  following  the  lan- 
guage of  the  statute.  Some  authorities  rccpiire  that  the  e.xact 
words  of  the  statute  must  be  employed.  Others  regard  the  rnle 
as  satifified  if    words  substantially  the  same,  or  equivalent    "f 


8PARRENBERGER  «.  STATE. 


471 


0  not  the  same  as 


the  same  legal  import  with  the  words  of  the  statute— are  used. 
This  is  the  rule  which  has  prevailed  in  this  court  from  an  early 
(lay :    State  v.  Brown,  4  Port,,  410 ;  State  v.  Stedmam.,  7  Port., 
495;  State  v.  Duncan,  9  Port.,  260;    Turnipiseed  v.  State,  G 
Ala.,  664 ;   Worrell  v.  State,  12  Ala.,  732 :  State  v.  Bullock,  13 
Ala.,  413  ;  Skains  <&  Lewis  v.  State,  21  Ala.,  218.     If  the  words 
employed  in  the  indictment  as  descriptive  of  the  offense  have 
not  the  full  signification  of  the  words  of  the  statute — if  they 
are  narrower  in  meaning — they  cannot  be  deemed  sufticient. 
An  examination  of  the  indictment  would  not  authorize  the  court 
to  declare  the  offense  had  been  committed,  nor  would  it  inform 
the  defendant  of  the  precise  nature   of  the   accusation.     The 
indictment  was  intended  to  be  founded  on  the  clause  of  the 
statute  to  punish  Sabbath-breaking  (R.  C,  sec.  3614),  which  is 
in  these  words,   "or  who,   being  a  merchant  or  shop-keeper 
(druggist  excepted),  keeps  open  store  on  that  'lay."     The  suffi- 
ciency of  the  second  count  alone  is  presented  for  consideration, 
a  demurrer  to  tlie  first  count  having  been  sustained  by  the  city 
court.     The  count  preserves  the  words  of  the  statute,  except 
that  it  substitutes  the  word  shop  for  the  word  store,  alleging,  not 
that  the  defendant  did  keep  open  store,  but  that  he  did  keep 
open  shop  on  the  Sabbath.     It  is  insisted  the  word  shop  is  tlie 
equivalent  and  of  the  same  legal  import  of  the  word  store,  in 
the  connection  in  wliich  the  latter  word  is  found  in  the  statute, 
and  that,  therefore,  the  count  is  good.     The  word  store  is  of 
larger  signification  than  the  word  shop.     It  not  only  compre- 
hends all  that  is  embraced  in  the  word  shop,  when  that  word  is 
used  to  designate  a  place  in  which  goods  or  merchandise  are  sold, 
but  more,  a  place  of  deposit,  a  store-house.     In  common  par- 
lance, the  two  words  have  a  distinct  meaning.     "We  speak  of 
shops  as  places  in  which  mechanics  pursue  their  trades,  as  a  car- 
penter\'i  shop,  a  blacksm/'th^s  shoj>,  a  shoemaker  s  shop.     While, 
if  we  refer  to  a  place  where  goods  and  merchandise  are  bought 
and  sold,  whether  by  wholesale  or  retail,  we  speak  of  it  as  a 
store.     Druggists  are  excepted  from  the  operation  of  the  statute. 
Unless  in  derision,  we  would  never  say  a  drug  shop,  but  a  dnig 
"afore.     There  are  but  few,  if  any,  who  would  understand  that  a 
man  had  a  stoi'e,  and  was  engaged  in  buying  and  selling  goods  or 
merchandise,  if  we  said  he  had  a  shop.     We  never  speak  of  the 
place  in  which  the  mechanic  exercises  his  trade  as  a  store,  jior  do 
we  speak  of  the  place  in  which  goods  are  bought  and  sold  as  a 


f(.v"'"i;ffi"!'  yi'i'- 


472 


AMKUICA>f  .CIIIMINAL  REPORTS. 


shop.     A  dollar  shop  would  scarcely  convey  to  the  understand- 
ing of  any  the  idea  of  a  place  where  goods  purport  to  be  sold  at 
a  price  not  greater  than  one  dollar  for  any  article  exhibited 
while  such  is  the  signification  of  dollar  storfi.     Whatever  may 
be  the  signification  lexicographers  attach  to  words,  they  acquire 
a  local  meaning,  and  often  a  peculiar  meaning,  in  particular  com- 
munities, which  courts  must  observe  in  the  construction  of  stat- 
utes, or  of  contracts,  or  of  conveyances,  if  the  legislative  intent, 
or  the  intent  of  parties  is  to  govern.     Hence,  technical  words 
receive  their  technical  signification  in  the  absence  of  a  counter- 
vailing intent,  and  so  of  terms  of  art.     Words  in  conmion  use, 
when   a  manifest  legislative  intent  is  not  contravened,  receive 
their  ordinary  and    popular  signification.      In  Mat/or,  etc.,  v. 
Winter,  29  Ala.,  651,  the  words  "  internal  improvements,"  in  a 
statute  conferring  upon   a  municipal  corporation  authoi-ity  to 
issue  bonds  for  the  purpose  of  such  improvements,  was  nt)t  con- 
strued as  referring  merely  to  improvements  within  tlie  corpora- 
tion, but  to  improvements  within  the  state,  because  such  was  the 
popular  signification  of  tlie  words.     In  Favers  v.  Glax^,  22  Ala., 
621,  it  was  declared  that  when  a  word  is  used  in  a  statute  which 
has  two  significations,  it  should,  ordinarily,  receive  that  meaning 
\  which  is  generally  given  to  it  in  the  community,  unless  it  is 
inconsistent  with  the  manifest  legislative  intent.     The  word  doiv 
has  with  us  a  popular  signification,  as  a  house  where  goods  are 
bought  and  sold,  or  stored,  and  such  is  its  signification  in  the 
statute  under  consideration.     The  statute  intends  the  ])roIiil)iti(»n 
of  worldly  avocations  on  the  Sabbath.     It  is  the  keeping  open 
the  store  for  buying  or  selling,  or  for  receiving  and  storing  on 
that  day,  which  is  declared  criminal.     Hut  it  is  said  the  word 
stm'e  is   preceded   by   the   words   nwrehnnt  or  shop-keepir,  a.s 
descriptive  of  the  persons  who  may  commit  the  ott'ense.     Tlie 
word   shop-keeper  was    einploved,   from   abundant  caution,  to 
exclude  a  construction  which  may  have  been  sup|)08ed  possible, 
if  the  word  merchant  stood  alone,  that  only  large,  not  small, 
dealers  were  within  the  statute.     The  word  shop,  in  any  signiti- 
cation  which  may  be  given  it,  is  narrower  in  meaning  than  tiie 
word  store,  and  cannot,  therefore,  be  deemed  its  equivalent,  oi** 
of  the  same  legal  import:     Caniieij  v.   Slate,   19  N.  II.,  ll}."). 
The  warehouseman  who,  on  the  8abl)iith,  keeps  his  storehouse 
open,  and  pursues  his  ordinary  business  therein,  would  violate 
the  statute,  and  yet  it  would  be  a  mere  perversion  of  words  to 


■  ■  »»\»k* 


SPARUENBERGER  v.  STATE. 


473 


say  he  kept  open  s/ioj)  on  the  Sajbaf'.i.  It  is  to  be  regretted  that 
inaccuracies  of  this  kind  should  creep  in  vitiating  criminal 
convictions.  It  can  bo  avoided  by  pursuing  the  words  of  the 
gtatute,  wlien  these  fully  describe  flie  offense.  If  words  are  sub- 
stituted for  them,  the  pleader  should  be  careful  to  select  such  as 
are  equivalent  in  signification  to  the  statutory  words.  Keeping 
(ipen  shop  on  the  Sabbath  is  not  an  oifense,  and  that  is  the  griev- 
ance of  the  charge  in  the  count.  Intendments  in  support  of 
indictments  are  not  allowable.  The  averments  of  the  indictment 
may  all  be  true,  and  the  appellant  guiltless.  IIo  may  be  a  mer- 
chant or  shop-keeper,  owning  a  blacksmith  or  other  shop  for 
mechanical  trades,  which  he  kept  open  on  the  Sabbatli,  thus 
verifying  every  word  of  the  indictment,  and  the  statute  not 
violated. 

The  grand  jury,  in  the  investigation  of  a  charge  for  any  indict- 
able offense,  can  receive  no  other  evidence  than  is  given  by  wit- 
liosses  before  them,  or  legal  documentary  evidence :  R.  C,  sec. 
4103.  The  concurrence  of  at  least  twelve  grand  jurors  is  neces- 
sary to  find  an  indictment:  R.  C,  sec.  41(t4.  If  the  matter  of 
the  pleas  in  abatement  is  true,  these  statutory  provisions  were 
violated  or  disregarded  by  the  grand  jury,  and  tlie  paper  pur- 
porting to  be  an  indictment  is  not  such  in  fact.  While  the  pro- 
ooedings  are  in  Jieri,  the  court  has  an  inherent  power  to  str.^e 
from  its  files  any  paper  which  has  been  wrongfully,  without  the 
■warrant  of  law,  introduced  into  them,  or  to  amend  defects  or  to 
expunge  from  its  records  matter  not  true  or  pertinent,  which 
may  have  been  inadvertently,  or,  if  the  fact  should  appear, 
fraudulently,  inserted  in  them.  When,  before  final  judgment, 
and  there  has  not  been  a  want  of  diligence  in  calling  the  atten- 
tion of  the  court  to  tlie  fact,  it  appears  that  a  paper,  purporting 
to  be  an  indictment,  has  not  been  returned  into  court  as  a  "  true 
bill."  with  the  concurrence  of  twelve  of  the  grand  jurors,  it 
should  be  quashed  and  stricken  from  the  Kles.  So,  if  it  appears 
it  was  found  without  the  evidence  of  witnesses,  or  without  legal 
documentary  evidence.  We  adopt  the  language  of  the  court  in 
the  case  of  The  U.  S.  v.  Cool!d(/e,  2  Gall,  307:  "The  grand 
jury  is  the  great  inquest  between  the  government  and  the  citizen. 
]t  is  of  the  highest  importance  that  this  institution  be  preserved 
in  its  purity,  and  that  no  citizen  be  tried  until  he  has  been  regu- 
larly accused  by  the  proper  tribunal."  See,  also,  1  Green.  Ev., 
sec.  252;  Law's  Case,  3  Greenl.  (^\^\^.  430.     The  objection  can- 


\          im 

\    ■          ;  i  1 

It 

1                            ■      " 

|K..| 


^^f : . 

■    ! 

■,i. 

■1 

'1 

,■  4. 

^l 

i| 

■'•n 


Si- 


'y\. 

','' 

l<   A* 


•     [.n 


474 


A3IERICAN  CRIMINAL  REPORTS. 


not,  however,  be  taken  by  plea  :     People  v.  Ilulhet't,  4  Doiiio 
133.     As  a  general  rule,  pleading  to  an  indictment  admits  its 
genuineness  as  a  record :     State  v.  ClavTcson,  3  Ala.,  .'{7s ;  ^„^. 
sell  V.  State,  33  Ala.,  366.     T^ie  inquiry  the  objection  involves 
is  not  triable  by  a  jury ;  it  is  addressed  to  the  court,  and  to  it.'* 
power  over  its  records.     The  indictment  is  not  abated  ;  a  better 
indictment  is  not  given  ;  that  which  Jippears  on  the  file  may  be 
perfect  in  form  and  allegation — free  from  defects.     The  objec- 
tion, as  is  said  in  Law's  case,  goes  not  to  its  abatement,  but  to  its 
annihilation — to  tlie  denying  it  ever  had  a  leg.1l  existence.    Tin- 
verity  of  a  record  is  not  disjiutable  by  plea,  nor  by  evidence  im 
the  trial ;  for  a  plea  averring  against  a  record  cannot  be  enter- 
tained, and  evidence  is  not  admissible,  unless  it  is  in  corrobor- 
ation of,  or  corresponds  to,  pleading.     But  the  court  has  jiowcr 
over  its  records,  and  it  is  a  sacred  dnty  that  they  should  l)o  made 
to  speak  the  truth,  and  not  witnesses  of  falsehood.     On  a  tiiotion 
to  quash  or  strike  from  the  files,  addressed  to  the  court  with  rea- 
sonable diligence,  after  the  facts  have  been  discovered,  8upi)orto(l 
by  evidence,  leaving  no  reasonable  doubt  on  the  mind  of  the 
court  that  the  indictment  was  not  the  finding  of  twelve  of  the 
grand  jury ;  or  that  it  was  found  witliout  the  evidence  of  wit- 
nesses before  them,  or  legal  documentary  evidence,  truth  ami 
justice,  the  preservation  of  the  verity  and  dignity  of  its  ovii 
records,  the  protection  of  the  citizen  and  constitutional  guaninty 
demand  that  the  court  should  expunge  the  spurious  paj)er.     It  is 
not  an  accusation  the  citizen  should  be  held   to  answer;  it  is 
without  warrant  of  law.     This  case  does  not  recjuire  us  to  say 
more.     The  pleas  in  abatement  were  subject  to  dennirrer,  bccnuse 
the  matter  they  contained  was  not  the  subject  of  a  plea.     It  is 
scarcely  necessary  to  say,  that  when  it  apjicars  witnesses  were 
examined  by  the  grand  jury,  or  the  jury  had  before  them  Icffiil 
documentary  evidence,  no  inquiry  into  the  sufficiency  of  the  evi- 
dence is  indulged.     A  former  finding  by  a  grand  jury,  which  \\a^ 
been  quashed,  or  on  which  a  nol.  jtros.  has  been  entered,  is  not 
legal  documentary  evidence  on  which  a  succeeding  grand  jury 
can  properly  find  an  indictment. 

For  the  error  in  overruling  the  demurrer  to  the  indictment, 
the  judgment  must  be  reversed,  and  the  cause  renumded.  The 
apj)ellant  must  remain  in  custody  until  discharged  by  due  course 
of  law. 


ffl^^ 


t! 


PEOPLE  V.  SIOUUISEI'TE. 


475 


People  v.  Morbisette. 

(20  How.  (N.  Y.)  Pr.,  118.) 

Practice:    Suspending  sentence 

No  court,  without  a  s|)i!cial  statutory  authority,  possesse.i  the  power  to  sus- 
pend sentence  '  uleflnitoly.  It  is  the  duty  of  the  court  to  pronounce 
judgment  in  tlie  case  of  every  person  convicted. 

The  following  opinion  was  delivered  in  a  case  where  an  appli- 
cation was  made  for  a  suspension  of  sentence : 

Balcom,  J.  I  am  of  the  opinion  the  court  does  not  possess 
the  power  to  suspend  sentence  indefinitely  in  any  case.  As  I 
understand  the  law,  it  is  the  duty  of  the  court,  unless  application 
be  made  for  a  new  trial,  or  a  motion  in  arrest  of  judgment  be 
made  for  some  defect  in  the  indictment,  to  pronounce  judgment 
upon  every  prisoner  convicted  of  crime  by  a  jury,  or  who  pleads 
guilty.  An  indefinite  suspension  of  the  sentence  prescribed  by 
law  is  a  quasi  pardon,  provided  the  prisoner  be  discharged  from 
imprisonment.  No  court  in  the  state  has  any  pardoning  power. 
That  power  is  vested  exclusively  in  the  governor. 

I  have  learned,  by  the  newspapers,  that  the  recorder -of  this 
city  occasionally  suspuudcd  st'iitciK-e  upon  verdicts  or  pleas  of 
guilty,  and  I  asked  him  last  week  where  his  authority  was  for  so 
doing.  He  told  me  he  thought  there  was  an  old  statute  appli- 
cable to  his  court,  authorizing  the  suspension  of  judgment  upon 
criminals  in  certain  (lases.  I  have  been  unable  to  find  any  such 
statute,  and  the  district  attorney  has  said  he  does  not  know  of 
any. 

Two  of  the  justices  of  the  Supreme  Court,  residing  in  this 
city,  havy  informed  me  that  they  are  not  aware  of  any  such 
ptatute,  or  of  any  authority  for  suspending  sentence  against  crim- 
iuaJB  who  have  been  found  guilty  by  a  jury,  or  have  pleaded 
guilty. 

I  have  heard  that  criminal  courts,  in  some  parts  of  the  state, 
and  even  justices  of  the  peace,  have  lately  assumed  the  right  to 
Buspend  sentencing  prisoners  found  guilty  of  crime  before  them. 
But  1  am  of  tjie  opinion  no  court  in  the  state  is  authorized  to  do 
80.  I  think  it  is  the  imperative  duty  of  every  court  to  pro- 
nounce the  judgment  prescribed  by  law  upon  all  persons  con- 


476 


ami:i{u;an  criminal  reports. 


victed  of  crime  before  them,  unless  steps  are  taken  for  a  new 
trial,  or  a  motion  be  made  in  arrest  of  judgment,  for  some  defect 
in  the  indictment.  A  stay  of  the  sentence  may  be  granted 
where  a  certiorari  is  sued  out,  and  a  stay  of  judgment  may  also 
be  granted  upon  a  writ  of  error.  But  no  suspension  of  sentence 
or  stay  is  authorized  except  upon  a  certiorari  or  writ  of  error. 
For  these  reasons  I  must  refuse  to  suspend  sentence  in  thi.s  ease. 
The  prisoner  was  then  sentenced  to  imprisonment  in  the  peni- 
tentiary for  six  months. 


MOROENSTKUN    V.    COMMONWEALTH. 

(27  Gratt.  (Va.),  1018.) 

Practick:    Indictment — Duplicity  —  Liquor  tdling. 

Under  a  statute  imposing  a  penalty  for  the  sale  of  liquor  to  a  minor,  an 
indictment  charging  the  sale  of  liquor,  at  a  certain  time  and  place,  to 
"  certain  minors,  the  names  of  whom  are  to  the  grand  jurors  unknown," 
charges  but  one  offense,  and  is  not  bad  for  duplicity. 

Under  a  law  punishing  the  sale  of  liquor  to  minors,  the  sale  of  the  liquor  to 
tho  minor  is  an  offense  against  the  person,  and  the  name  and  identity  of 
tlie  person  to  whom  the  liquor  was  sold  are  material,  and  where  the 
indictment  alleges  a  sale  to  minors  whose  names  are  unknown  to  the 
grand  jurors,  if  the  evidence  on  the  trial  shows  that  tlie  names  of  the 
minors  were  known  to  the  grand  jurors,  the  variance  is  fatal,  and  tlie 
defendant  must  be  acquitted. 

CHKis'nAK,  J.  These  two  cases  were  heard  togetlier  in  tliis 
court.  The  questions  we  have  to  determine  are  the  same  in 
both  cases. 

They  are  prosecutions  against  the  phiintiffs  in  error  rcppec- 
tively,  for  a  violation  of  the  statute  making  it  a  |)eiial  otfen.se, 
"  if  any  person  shall  sell  or  barter,  or  cause  to  be  sold  or  bar- 
tered, or  being  a  merchant  or  tradesman,  or  keeper  of  an  eating 
house  or  ordinary,  shall  directly  or  indirectly  give  or  furnish,  or 
dispose  of,  or  shall  permit  to  be  sold  or  bartered,  or  given  or  dis- 
posed of  by  his  clerk  or  agent  or  salesman,  to  any  minor,  know- 
ing him  to  be  a  minor,  without  the  consent  of  his  parent  or 
guardian,  any  wine  or  ardent  spirits  or  mixture  thereof,"  etc. 
Under  this  statute  the  plaintiffs  in  error  were  ipdicted  in  the 
hustings  court  of  the  city  of  Richmond,  for  selling  ardent  spirits 
*'  to  certain  minors,  the  names  of  whom  are  to  the  grand  jurors 


M0RGEN8TERN  «.  COMMONWEALTH. 


477 


unknown."  The  plaintiffs  in  error  were  found  guilty,  and  a 
fine  assessed  by  the  jury  at  $10  in  tlie  one  case  and  §20  the  other. 
Whereupon  it  was  ordered  and  adjudged  by  said  hustings  court, 
that  the  plaintiffs  in  error  be  confined  in  jail  until  tlie  fines  are 
paid,  and  that  each  enter  into  bond,  with  good  security,  "  to  be 
of  good  behavior  toward  all  the  citizens  of  this  conniiou wealth 
for  th3  space  of  one  year."  To  this  judgment  writs  of  error 
were  awarded  by  one  of  the  judges  of  this  court. 

The  C9urt  is  of  opinion  that  there  is  no  error  in  the  judgment 
of  the  said  hustings  court,  in  overruling  the  motion  to  quash  the 
indictments,  this  court  being  of  opinion  that  the  said  indictments 
set  forth  with  sufficient  distinctness  the  offense  punished  by  the 
statute ;  and  that  said  indictments  do  not  contain  charges  of  two 
distinct  offenses.  See  Young's  Case,  15  Gratt.,  664.  But  the 
court  is  further  of  opinion,  that  the  record  shows  that  there  was 
a  variance  between  the  charges  made  in  the  indictments,  and  the 
proof  upon  the  trial,  as  certified  by  the  court,  for  which  the  ver-. 
diets  ought  to  have  been  set  aside,  and  new  trials  ordered,  upon 
other  indictments  to  be  found  against  the  plaintiffs  in  error. 

The  variance  consisted  in  this,  that  while  the  indictments 
charged  the  defendants  (plaintiffs  in  error  here)  with  having  sold 
and  furnished  ardent  spirits  to  certain  minors,  "  the  names  of 
whom  are  to  the  grand  jurors  unknown,"  the  proof  is  clear  that 
in  both  cases  the  nam^s  of  these  minors  were  known  to  the  grand 
jury.  It  is  a  well  settled  rule  of  criminal  law,  that  in  that  class 
of  offenses,  where  the  act  of  constituting  the  offense  is  an  injury 
to  the  person,  the  name  of  the  injured  party  musl  be  stated  when 
known.  If  the  name  of  the  party  injured  be  unknown,  he 
should  be  described  as  "a  person  to  the  jurors  aforesaid 
unknown."  But  this  is  a  material  allegation,  and  if  it  turns  out 
in  the  trial  that  the  name  of  the  person  so  described  in  the 
indictment  was  known  to  the  grand  jury,  the  variance  will  be 
fatal,  and  the  accused  must  be  discharged  from  that  indictment 
and  tried  upon  another,  charging  the  name  of  the  person  injured : 
1  Arch.  Cr.  PL,  80-81  (marg.),  and  cases  there  cited ;  1  Whar. 
Am.  Cr.  Law,  sec.  251 ;  1  Bishop  Cr.  Pro.  (2d  ed.),  sees.  541-552 ; 
1  Chitty  Cr.  Law',  213-214  (marg.) 

The  case  before  us  comes  within  the  rules  above  stated.  The 
offense  punished  by  the  statute  is  the  selling  or  furnishing  ardent 
spirits  to  minors,  without  the  consent  of  the  parent  or  guardian. 


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lifM 


478 


AMERICAN  CUIMINAL  REPORTS. 


The  offense  denounced  by  the  statute  is  a  direct  injury  to  third 
persons. 

It  is  very  manifest  that  the  object  and  aim  of  the  statute  was 
to  protect  the  young  against  the  evils  of  the  bar-room  and  the 
grog-sliop.  It  was  enacted  to  guard  and  defend  the  niiiiur 
against  an  injury  to  him — an  injury,  it  may  be,  as  fatal  and 
deadly  as  the  hand  of  the  robber  or  the  knife  of  the  assassin. 

In  these  cases  it  maj  be  further  said,  that  the  offense  |)unislied 
by  the  statute  is  an  offense  against  the  person  in  a  double  sense. 
It  is  not  only  an  offense  against  the  minor,  but  an  injury  ajfaiiist 
the  "parent  or  guardian."  Surely,  no  more  grievous  injury  can 
be  perpetrated  against  a  parent  or  a  guardian  than  that  which 
entices  the  son  or  the  ward,  at  the  early  age  of  minority,  to 
become  the  frequenter  of  a  bar-room,  and  to  contract,  in  early 
life,  the  habit  of  indulgence  in  strong  drink.  The  statute  was 
enacted  not  only  for  the  good  of  society  in  general,  and  tlie 
maintenance  of  order  and  good  morals,  but  for  the  protection  of 
both  the  minor  and  the  parent  or  guardian. 

The  cases  before  us  are,  therefore,  brought  within  that  class  of 
cases  where  the  act  constituting  the  offense  is  an  injury  to  third 
persons.  In  such  cases  it  is  well  settled  that  the  name  of  the 
person,  if  known,  must  be  stated,  and  if  described  as  "  a  person 
to  the  jury  unknown,  and  it  turns  out,  upon  the  proof,  that 
the  names  were  known,  this  will  be  a  fatal  variance.  The  cases 
relied  on  by  the  attorney-general  are  not  in  conflict  with  tlio 
authorities  above  cited,  or  the  views  herein  stated. 

The  case  of  Commonivealth  v.  Smith  cfe  Burwell^  1  Gratt., 
553  (of  which  wo  have  a  very  meagre  report,  no  opinion  IxMnj; 
given,  but  sitnply  a  resolution  of  the  general  courts,  was  a  prose- 
cution for  selling  ardent  spirits  to  slaves,  without  the  consent  of 
their  masters,  etc.  The  indictment  in  that  case  charged  the 
defendants  with  selling  ardent  spirits  "to  slaves,  whose  names, 
or  whoso  owners'  names,  were  to  the  jurors  unknown."  The 
case  came  up  on  a  demurrer  to  the  indictment.  The  indictment 
was  held  good.  This  was  the  only  question  made  by  the  record. 
If  it  had  been  proved  in  that  case  that  the  names  of  the  owner 
and  of  the  slaves  were  known  to  the  grand  jury,  the  question 
would  have  been  a  very  dilfereiit  one.  Then  the  question  raised 
would  have  been,  was  there  a  variance  between  the  allegations 
and  the  proof  ?     IJut  no  such  (piestion  was  raiiod,  and  the  deei- 


ii 


^mm 


MOltGE.NSTl.KN  r.  COMMON WKALTH. 


479 


gion  must  hn  taken  to  be  confined  to  the  demurrer,  as  the  only 
question  raised  on  the  record. 

The  other  case  relied  on  by  the  attorney-general  is  JIulstead's 
Cane,  '>  Leigh.,  724.  That  was  a  prosecution  for  selling  ardent 
gpirits  without  license.  The  indictment  ciiarged  the  sale,  with- 
out license,  "  to  persons  to  the  jurors  unknown."  Evidence  was 
offered,  at  the  trial,  tending  to  prove  tliat  the  persons  to  whom 
tlie  sale  was  made  were  known  to  the  grand  jury.  The  defend- 
ant moved  the  court  to  instruct  the  jury,  that  if  they  should  find 
that  the  person  to  whom  he  sold  the  spirits,  in  the  indictment 
uientioned,  was  in  fact  known  to  the  grand  jury  at  the  time  the 
indictment  was  found,  the  commonwealth  could  not  sustain  this 
indictment.  The  court  refused  to  give  this  instruction.  The 
general  court  affirmed  the  decision  of  the  county  court,  and  held 
that  this  was  not  a  material  variance  between  the  proof  and  the 
diiirge  in  the  indictment ;  that  it  was  not  necessary  in  indict- 
ments for  such  offenses  (i.  e.,  for  selling  ardent  spirits  without 
license)  to  name  the  person  to  whom  the  liquor  was  sold,  and 
that  the  words  in  that  indictment,  "to  persons  to  the  jurors 
unknown,"  are  surplusage. 

Cut  in  that  case  the  court  said :  "  The  offense  of  retailing 
Hpirits  is  distinguishable  from  that  class  of  offenses  where  the 
act  constitutitig  the  offense  is  an  injury  to  a  third  person,  such  os 
nuinler,  larceny,  etc.,  in  which  the  name  of  the  injured  party 
ought  to  be  stated  when  known.  The  reason  of  that  rule  does 
nut  apply  to  that  ckiss  of  offenses  to  which  retailing  ardent 
spirits,  without  license,  belongs ;  offenses,  in  which  the  act  con- 
bUtiiting  the  offense,  is  not  an  injury  to  third  persons." 

This  case  is  entirely  consistent  with  the  rules  of  criminal  law 
ahove  stated,  and  is  not  at  all  in  conflict  with  the  authorities 
above  cited. 

The  offense  of  selling  ardent  spirits,  without  license,  is  not  an 
offense  against  third  persons,  but  an  offense  against  the  revenue 
laws,  and,  it  may  be,  against  social  order  and  public  morals. 
The  offense  is  the  selling  without  license.  It  matters  not  to 
whom  or  to  what  j)erson  it  is  sold ;  and,  therefore,  the  name  of 
the  person  is  immaterial  to  be  stated.  But,  under  the  statute 
ui)on  which  the  indictments  before  us  are  found,  the  otfense  is 
not  the  mere  selling  of  ardent  spirits,  but  selling  or  furnishing 
the  same  to  a  minor,  without  the  consent  of  the  parent  or 
guardian. 


480 


AMERICAN  CRIMINAL  REPORTS. 


1 


"f  ( 


'41 

Ml 

In  such  a  case,  the  act  coTJstituting  the  oiioiise  is  an  injury  to 
third  persons,  and,  therefore,  the  person,  if  known,  must  Ijo 
named  in  the  indictment ;  and  if  charged  as  "  a  person  to  the 
jurors  unknown,"  when,  in  fact,  he  is  known,  this  will  be  a  fatal 
variance. 

The  court  is,  therefore,  of  opinion  that  the  judgment  of  the 
said  hustings  court,  in  both  cases,  be  reversed,  and  the  defend- 
ants be  discharged  from  further  prosecution  under  said  indict- 
ments ;  subject,  however,  to  be  tried  under  other  indictments 
(if  any  be  so  found  againp*  them),  setting  forth  the  nainos  (if 
such  names  be  known),  of  the  minors  to  whom  ardent  spirits 
were  sold  or  furnished. 

Ji(d(/ment  reversed. 


ItKVNoLns    V.    PkoI'LE. 


(83  111..  479.) 
Puactice:    Accdtmry  itftcr  the  fact. 

One  indicted  as  priDcipal  in  a  larceny  cannot,  under  that  indictment,  be 
convicted  as  accessory  after  the  fact.  The  two  oilcnses  are  essciitiully 
diflferent  in  their  natures,  and  the  latter  is  not  a  lower  grade  of,  or 
included  within  the  former. 

Tlio  dictum  to  the  contrary,  in  Yoe  t».  People,  49  111.,  410,  is  overruled. 

Scott,  J.  It  is  very  clear  the  conviction  of  Reynolds  caiiiiot 
be  sustained  under  the  present  indictment. 

Of  the  crime  of  larceny,  for  which  lie  was  indicted  jointly 
with  others,  he  was  acquitted,  but,  the  principal  l)eiiig  found 
guilty,  he  was  found  guilty  as  an  "accessory  after  the  fact." 
This  conviction  is  without  warrant  of  law. 

An  aeoesHory  is  delincd  in  the  statute  to  be  one  "  who  stands 
by  and  aids,  abets  or  assists,  or  who,  not  being  present  aiding:, 
abetting  or  assisting,  hath  advised,  encouraged,  aided  or  abetted 
the  perpetration  of  crime."  One  thus  guilty  is  considered  a 
principal,  and  punished  accordingly. 

An  "  accessory  after  the  fact "  is  not  punished  under  our  stat- 
ute as  a  principal.  A  less  measure  of  punishment  is  provided. 
The  definition  given  in  the  statute,  as  well  as  at  common  law, 
makes  a  clear  distinction  in  the  olTenses.  Under  our  law,  "evorv 
one  not  standing  in  the  relation  of  husband  or  wife,  parent  or 


5r;' 


REYNOLDS  r.  PEOPLE. 


481 


child,  brother  or  sister,  to  tlio  offeiuler,  who  knows  the  fact  that 
a  crime  has  been  couimittud,  and  conceals  it  from  the  magistrate, 
or  who  harbors,  conceals,  maintains  or  assists  any  principal  felon 
or  accessory  before  tlie  fact,  knowing  him  to  be  such,  shall  be 
deemed  an  accessory  after  the  fact." 

One  offense  defined  is  a  felony,  and  the  other  is  but  a  misde- 
meanor. Text  writers  record  it  from  the  old  books,  that  "  every 
treason  includes  a  misprision  of  treason,  and  every  felony  a  mis- 
prision of  felony,"  and  such  misprision  is  but  a  misdemeanor. 
It  has  been  definitely  declared  in  the  decisions  of  this  court,  as  in 
Carpenter  v.  The  People,  -i  Scam.,  197,  where  a  defeiidant  is  put 
upon  his  trial  for  a  crime  which  includes  an  offense  of  an  inferior 
degree,  he  may  be  acquitted  of  the  higher  offense  and  convicted 
of  the  lesser,  although  there  may  be  no  count  in  the  indictment 
specifically  charging  that  particular  offense.  Illustrations  are 
ifiven  in  other  cases.  Where  the  crime  charged  is  nuirder,  the 
accused  may  be  convicted  of  manslaughter,  or  where  the  crime 
charged  is  rape,  the  conviction  may  be  for  attempt  to  commit  a 
rape.  The  principle  is,  the  graver  offense  necessarily  includes 
the  lesser,  and  proof  of  the  higher  cx'wxw,  cannot  be  made  without 
proof  of  all  that  which  it  includes.  But  this  rule  abv?ys  iini)lies 
the  lesser  offense  is  included  in  the  higher  crime  with  which  the 
accused  is  specifically  charged,  and  if  it  is  not  a  constituent  ele- 
ment in  the  higher  crime  charged,  no  conviction  can  bo  had. 
('iirjx'iifer  V.  The  People^  Hupra 'j  Bcckwlth  v.  Tht  Ptuple,  'b\ 
111.,  500. 

The  offense  of  wliicli  an  "accessory  after  the  fact"  may  be 
u'liilty  is  not  included,  nor  has  it  any  connection  with  the  priiici- 
|iul  crime.  This  is  api)arent  from  the  definitions  given,  both  in 
niir  statute  and  in  the  common  law. 

The  one  cannot  be  committed  until  the  principal  offense  is 
;iii  accomplished  tact.  Persons  occupying  a  certain  relation  to 
;lic  off'cnder  are  excluded  from  the  operation  of  the  statuto. 
Tlio  guilty  knowledge,  which  is  the  essence  of  the  offense,  cotnes 
after  the  priiu'ipal  crime  is  committed,  and  of  course  they  can 
have  no  connection  with  each  other.  But  no  better  test  need  bo 
;  night  than  the  fact  a  party  indicted  as  a  principal  and  acquitted, 
iiuiy  yet  be  indicted  as  an  "accessory  after  the  fact,"  or  if 
indicted  as  an  "accessory  after  the  fact"  and  acquitted,  he  may 
1)0  indicted  as  a  principal,  and  the  reason  assigned  in  the  com- 
mon law  authorities  is,  "  they  are  offenses  of  several  natures." 
Vol,.  II.— ai 


?l! 


482 


AMERICAN  CRIMINAL  REPORTS. 


Hence  a  conviction  for  one  is  no  bar  to  a  prosecution  for  the 
other.    Hale's  Pleas  of  the  Crown,  vol.  1,  620. 

What  was  said  in  Yoe  v.  ThePeople,  49  111.,  410,  on  this  sub- 
ject, was  not  necessary  to  the  decision,  and  on  more  mature 
reiiection  we  are  satisfied  it  was  not  correctly  stated. 

According  to  the  finding  of  the  jury,  the  accused  did  not  par- 
ticipate in  the  principal  crime  for  which  he  was  indicted,  but  was 
found  guilty  of  a  misdemeanor  subsequently  committed,  with 
which  he  had  not  been  charged.  This  is  not  according  to  the  analo- 
gies of  the  laws.  Proof  of  the  principal  felony  does  not  prove 
nor  tend  to  prove  a  party  is  guilty  as  an  "  accessory  after  the 
fact." 

It  would  be  a  most  illogical  conclusion.  As  at  common 
law,  so  under  our  statute,  they  are  "  oifenses  of  several  natures." 
The  judgment  will  be  reversed,  and  the  cause  remanded. 

Judgiaent  revened. 


;!    r 


Kt 


P  ' 


•;f 


-      4- 


Pkople  v.  Ah   Lino. 

(51  Cal.,  372.) 

Practice  :    Reasonal)le  doubt  —  ErroneovB  charge. 

It  is  error  to  in.struct  a  jury  that  "if  the  evideucn  Is  such  tliiit  a  mnn  of 
pruch'iice  wouUl  act  upou  it  in  his  own  iifTiiiis  of  tlic  fjreiilcst,  iniportuncc, 
tlicn  tlicre  cannot  remain  a  reasonable  doubt  williin  tlio  meaning  of  the 
law." 

Wallace,  C.  J.  The  court  below,  after  insti'iicting  the  jury 
that  the  defendants,  on  trial  upon  .lu  indictment  for  murder,  an; 
presumed  to  be  innocent  until  proven  guilty  beyond  a  riMsonablu 
doubt,  proceeded  as  follows  :  "A  reasonable  doubt  is  that  state 
of  a  case  which,  after  the  entire  comparison  and  ci  risidcration  of 
all  the  evidence,  leaves  the  minds  of  the  jurors  in  that  condition 
that  they  cannot  feel  an  abiding  conviction,  to  a  moral  certainty, 
of  the  truth  of  the  charge.  The  doubt  must  not  be  vague  and 
shadowy.  Absolute  certainty  is  rarely  attainable,  and  is  never 
required.  If  the  evidence  In  nuch  that  a  man  of  pv^nhnee  vonhl 
act  upon  it  in  his  own  affairs  of  tJie  greatest  importance,  f/ini 
there  cannot  remain  a  reasonable  doubt  within  the  meaning  of 
the  law.''''  The  defendants  excepted  to  bo  much  of  the  instruc- 
tion as  is  italicized. 


PEOPLE  V.  AH  LING. 


483 


I  do  not  understand  the  attorney -general  to  claim,  in  argument 
here,  that  the  latter  portion  of  the  instruction  can  be  supported. 
In  People  v.  Bm/man,  47  Cal.,  96,  the  jury  had  been  told  that 
they  might  convict,  if  '■^satisfied  of  the  guilt  of  the  defendant 
to  such  a  moral  certainty  as  would  influence  the  minds  of  the 
jury  m  the  importamt  affairs  of  life''  We  held  the  instruction 
in  that  case  erroneous,  because  it  required  nothing  more  than  a 
mere  preponderance  of  evidence  to  work  a  conviction  of  the 
prisoner.  I  do  not  perceive  any  substantial  difference  between 
the  instruction  considered  in  that  case  and  the  one  under  consid- 
eration in  this  case,  and  the  views  we  then  expressed  upon  the 
point  I  think  decisive  of  this  appeal.  It  is  certainly  a  mistake 
to  say  that  there  cannot  remain  a  reasonable  doubt  when  even 
the  evidence  is  such  "  that  a  man  of  prudence  wotdd  act  upon 
it  in  his  own  affairs  of  the  greatest  importance!''' 

"  Men  frequently  act  in  their  own  grave  and  important  con- 
cerns (said  the  court  of  appeals  of  Kentucky)  without  a  firm 
conviction  that  the  conclusion  upon  which  they  proceed  to  act  is 
correct ;  but  having  deliberately  weighed  all  the  facts  and  cir- 
cumstances known  to  them,  they  form  a  conclusion  upon  which 
they  proceed  to  act,  although  they  may  not  be  fully  convinced 
of  its  correctness.  But  this  degree  of  certainty  is  wholly  insuffi- 
cient to  authorize  a  verdict  of  guilty  in  a  criminal  case.  In  such 
a  case,  the  jury  should  be  fully  convinced  of  the  correctness  of 
their  conclusion  that  the  prisoner  was  guilty,  and  that  conviction 
should  be  so  clear  and  strong  as  to  exclude  from  their  minds  all 
reasonable  doubt  that  their  conclusion  was  correct : "  Jane, 
a  Slave,  v.  Commonwealth,  2  Metcalf,  30.  In  that  case  the 
jury  had  been  instructed  that  if  they  should  conclude,  from 
the  facts  and  circumstances  proven,  "  that  there  is  that  degree  of 
certainty  in  the  case,  that  they  would  act  on  it  in  their  own 
grave  and  important  concerns,  that  is  the  degree  of  certainty 
whicli  the  law  requires,  and  which  will  justify  and  warrant  them 
in  returning  a  verdict  of  guilty."  See,  also.  State  v.  Osca/r,  7 
Jones  R.,  N.  C,  305. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


V.    \ 


■fe*:!r''V' 


'^Pe'% 


48-1  AMEUICAN  CUIMI^SAL  UEI'OIITS, 


HosKiNs  V.  Peoplb. 

(84  111.,  87.) 
Practice:    Record  —  PUa. 

la  a  criminal  case  there  is  no  issue  formed,  and  can  be  no  valid  trial  until  tlie 
respondent  has  pleiided.  Where  u  conviction  has  been  had,  wilLout  a 
plea  having  been  entered,  the  conviction  ni':st  be  set  aside,  and  the  tiiuso 
remanded,  with  direction-*  to  arrai,!:fn  the  prisoner  and  proceed  to  a  new 
trial,  aJtliough  the  record  shows  that  prior  to  the  former  trial,  the  respond- 
ent waived  arraignment. 

Scott,  J.  Defendant  was  indicted,  at  the  August  term  of  the 
circuit  court  of  Marion  county,  for  larceny.  On  the  trial,  ho 
was  found  guilty,  and  sentenced  to  the  penitentiary  for  a  period 
of  three  years. 

It  appears,  from  the  record,  that  defendant  "  waived  arraij^n- 
raent,  copy  of  indictment,  list  of  jurors  and  witnesses,"  etc.,  hut 
no  plea  of  any  kind  was  entered.  So  far  as  this  record  discloses 
no  plea  was  entered  before  the  accused  was  placed  on  trial.  On 
the  authority  of  the  former  decisions  of  this  court,  this  wan 
error:  Johnson  v.  The  People,  22  111.,  314;  YdtxH  v.  The 
People,  65  Id.,  372.  It  was  held  in  those  cases  that,  without  an 
issue  formed,  there  could  be  nothing  to  try,  and  the  party  con- 
victed could  not,  properly,  be  sentenced.  This  error  jnaj  l)o 
corrected,  and  the  accused  may  be  arraigned  and  re(juired  to  plead 
to  the  indictment  before  he  is  again  placed  on  trial. 

The  judgment  will  be  reversed  and  the  cause  remanded. 

Judgment  reversed. 

Sheldon,  C.  J.,  Breese,  J.,  and  Craig,  J.,  do  not  concur  in 
this  opinion.  The  record  shows  the  prisoner  expressly  waived 
un  arraignment,  which,  jt)^/*  se,  includes  the  plea.  "We  think  tho 
waiver  of  arraignment  was  a  waiver  of  the  formal  entry  of  a 
plea  of  not  guilty.  The  prisoner  has  had  a  fair  trial  by  a  jury, 
and  was  adjudged  guilty.  The  entry  of  a  plea,  under  the  oir- 
cumstiuices,  was  mere  form,  and  unnecessary.  If  objections  soi 
technical  as  this  are  to  prevail,  it  will  be  difficult  to  etiforoe  the 
criminal  code.  The  prisoner  has  had  an  impartial  trial  by  a  jury 
of  the  vicinage,  on  a  good  indictment,  and  was  tried  in  tho  same 
manner,  and  aeked  instructions,  as  though  a  pica  of  not  guilty 


SMITH  V.  STATE. 


48- 


had  been  interposed.     We  perceive  no  ground  for  reversing  the 
judgment,  as  the  facts  proved  are  conclusive  iiguinst  him. 

Note.— See  State  «.  Caaaady,  12  Kas.,  550  (S.  0.,  1  Am.  Cr.  Rep.,  567), 
where  it  was  held  that  respondent  having  gone  to  trial  without  a  plea  could 
uiit  avail  himself  of  that  fact  after  verdict.  See,  also,  Grif/y  v.  People,  81 
Mich.,  471  (S.  C,  1  Am.  Cr.  Rep..  602);  Eisenman  v.  State,  49  Ind.,  520  (S.  ('.. 
1  Am.  Cr.  Rep.,  605);  Davin  t>.  State,  38  Wis.,  487  (S.  C,  1  Am.  Cr.  Rep.,  606). 
in  harmony  with  the  decision  of  the  majority  of  the  court  in  this  case. 


Smfth  v.  State. 

(45  Md.,   49.) 

Practice:    Repeal  of  law  pending  appeal. 

Wliere  the  law  under  vvliioh  the  respondent  is  indicted  is  repealed,  pending 
his  niiponl  and  before  nny  final  judgment  has  been  pronounced,  the  repeal 
of  the  law  abates  the  proceedings  and  no  judgment  can  be  pronounced. 

Stewart,  J.  It  appears  that  since  the  trial  of  this  case  in  the 
ciicuit  court,  and  ponding  this  appeal,  the  act  of  1876,  ch.  273. 
has  been  passed,  su-'-jJcrseding  the  act  of  1867,  ch.  390,  under 
which  the  prosecution  was  instituted ;  the  conviction  of  the  appel- 
lant must  therefore  fail.  Whether  considered  as  an  amending 
or  repealing  statute,  section  55  of  the  Code  of  public  lo<!al  laws 
of  Anno  Arundel  county,  as  it  stood  at  the  time  of  the  prosecu- 
tion, has  been  abrogated  or  modified  in  important  particulars. 
There  Is  no  law,  now  in  existence,  which  would  enable  the  court 
to  pronounce  judgment  upon  the  verdict. 

Pending  cases  are  not  excepted,  or  reserved,  in  the  repealing 
law  of  the  late  session. 

The  repeal  of  a  law  imposing  a  penalty  is,  of  itself,  a  remission 
of  the  penalty,  where  there  is  no  reservation.  A  party  cannot 
be  adjudged  guilty  after  the  law  under  which  he  may  have  been 
prosecuted  and  convicted  has  been  repealed,  although  the  offen.se 
may  have  been  committed  before  the  rejieal. 

The  decision  of  the  court  must  be  in  accordance  with  the  law 
as  it  stands  at  the  time  of  the  tinal  judgment :  Keller  v.  State, 
12  Mo.,  322.  It  follows  that  the  indictment  and  proceeding  in 
this  case  must  be  quashed,  and  it  is  unnecessary  to  decide  upon 
the  point  made  and  noted  in  the  bill  of  exceptions. 

Indictment  quashed. 
Decided  15th  .Tunc.  1876. 


IfFS 


m 


^M 


V      I 


4«6  AMIilUCAiN  CHIMINAL  REPORTS. 


State  v.  Thompson. 

(46  Iowa,  699.) 

Practice:    Exeemve  tentenee. 

The  extreme  penalty  of  the  law  is  only  to  be  inflicted  in  the  most  aggravated 
cases.  In  this  case  the  trial  judge  having  imposed  the  extreme  penalty  of 
the  law,  in  u  case  which  was  manifestly  not  of  the  most  aggravated  char- 
acter, the  term  of  imprisonment  was  reduced  by  the  Supreme  Court  from 
ten  to  five  years. 

The  defendant  and  Caroline  Sheets  were  jointly  indicted  for 
the  crime  of  incest.  Tlie  defendant  was  alone  tried,  was  found 
guilty,  and  sentenced  to  be  confined  in  the  penitentiary  for  the 
period  of  ten  years.     Defendant  appeals. 

Day,  Ch.  J.  No  complaint  is  made  of  the  instructions  of  any 
ruling  upon  the  trial.  The  evidence  is  conflicting,  but  it  fairly 
sustains  the  verdict.  Indeed,  it  is  not  claimed  by  appellant  tlmr 
there  is  such  a  want  of  evidence  that  we  would  be  justified  in 
disturbing  the  verdict. 

The  whole  purpose  of  the  appeal  seems  to  be  to  procure  a 
reduction  of  sentence.  We  are  asked  to  reduce  the  punisliment 
to  imprisonment  for  eighteen  months  or  two  years.  The  ciinu' 
of  incest  is  a  very  revolting  and  disgusting  one,  and  society  veiv 
justly  demands  that  it  should  be  severely  punished.  Still,  tlii:? 
(jrime,  like  every  other,  has  its  grades  of  aggravation  and  enorm- 
ity. The  legislature,  recognizing  this  fact,  has  prescribed  that  the 
punishment  for  this  crime  shall  be  imprisonment  in  the  peniten- 
tiary for  a  term  not  exceeding  ten  years  and  not  less  than  oiip 
year,  intending  that  between  these  limits  of  one  and  ten  years 
the  court  pronoimcing  sentence  shall  apportJDii  the  punishment 
to  the  circumstances  of  the  crime.  Caroline  Siieets,  with  whom 
the  crime  was  committed,  is  defendant's  step-danghter.  The 
defendant  married  Caroline's  mother  in  December.  1872.  The 
crime  charged  was  committed  about  two  years  thereafter.  The 
age  of  Caroline  does  not  appear,  but  she  is  the  mother  of  two 
bastard  children. 

The  evidence  does  not  show  that  any  seductive  arts  were 
employed.  The  defendant  and  Caroline  are  not  related  in  any 
degree  by  consanguinity.  It  must  be  admitted  that  much  moro 
aggravated   cases  of   this  crime    frequently   occur.      And   this 


IWi ■- 


STATE  V.  DlllVKR. 


487- 


afiinission,  we  think,  establislies  the  impropriety  of  imposing  tlie 
highest  penalty  of  the  law. 

If  Caroline  Sheets  had  been  defendant's  own  daughter,  or  his 
niece  even,  the  offense  would  have  been  a  greatly  aggravated 
one.  Tet  for  such  an  offense,  the  court  could  have  inflicted  no 
creater  punishment  than  has  been  imposed. 

In  view  of  these  facts,  whilst  we  cannot  regard  the  offense  so 
lightly  as  we  are  asked  to  do  by  defendant's  counsel,  still  we 
think  the  punishment  disproportionately  severe.  We  think  that 
iin  imprisonment  in  the  penitentiary  for  the  period  of  five  years 
will  answer  all  the  just  purposes  of  punishment,  and  atone  to 
society  for  the  outrage  committed  upon  it,  so  far  as  such  atone- 
ment is  possible.  The  term  of  sentence  will  be  reduced  to  five 
viiirfi  from  the  date  of  incarceration. 

Thus  modified,  the  judgment  is  affirmed. 

Note. — In  consiilerini;  this  case,  it  must  be  borne  in  mind  that  the  code  in 
Iowa  prescribes  that  the  Supreme  Court  "may  atlirm,  reverse,  or  modify  tlie 
judgment,  and  render  such  judgment  as  the  district  court  should  have  ren- 
dered, and  may,  if  necessary  or  i)roper,  order  a  new  trial.  It  may  reduce  the 
punishment,  but  cannot  increase  it:"  Iowa  Code,  187:5,  sec.  45:58.  Without 
such  a  provision,  no  appellate  tribunal  has  ever  exercised  such  an  authority. 
The  case  is  valuable,  however,  everywhere,  as  illustrating  one  of  the  prin- 
ciples which  should  always  be  regarded  iu  passing  .sentence. 


State  v.  Dkiveb. 

(78N.  C.,423.) 
Practice:    Excessive  tentenee. 

The  constitutional  provision  that  "cruel  and  unusual  punishment  shall  not  be 
inflicted"  must  be  given  effect  by  the  courts;  and  where  the  trial  judge 
imposes  a  sentence  of  excessive  severity,  judgment  will  bo  reversed  and 
the  cause  remanded  for  a  i)roper  seutcnce  to  be  imposed. 

On  a  conviction  for  assault  and  battery,  a  sentence  of  imprisonment  in  the 
county  jail  for  five  years,  and  at  the  expiration  thereof  to  give  security 
with  sureties  in  the  sum  of  |500  to  keep  the  peace  for  live  years,  is  exces- 
sive and  erroneous. 

Readb,  J.  "  Excessive  bail  should  not  be  required,  nor  exces- 
sive fines  impo.sed,  nor  cruel  or  unusual  punishment  inflicted." 
Const.,  art.  1,  sec.  14.  This  is  a  provision  in  our  state  constitu- 
tion and  in  the  constitution  of  the  United  States,  and  is  a  copy 
of  the  English  bill  of  rights. 


m 


1 ,:  ) 

I 

:'>..j 


1^ 


i 


488 


AMEIilCAN  CUIMINAL  REPORTS. 


The  dofeiuliint  was  indicted  for  an  assault  and  battery  upon  hi* 
wife,  and  was  convicted  and  sentenced  to  ini])ri8onnient  in  the 
county  jail  for  the  space  of  five  years,  and  at  the  expiratidii 
thereof  to  give  security  to  keep  the  peace  for  five  years  in  the 
sum  of  $500  with  sureties.  Being  unable  from  poverty  to 
ajjpeal,  he  files  his  petition  in  this  court  for  a  certiorari  to  brin<,' 
up  the  case  for  review,  upon  the  ground  that  the  sentence  was 
violative  of  the  constitution,  in  that  it  imposes  upon  him  "  cruel 
and  unusual  punishment." 

We  have  no  information  of  the  particulars  of   the  charii;c 
against  him,  except  what  he  states  in  his  petition.     He  states 
that,  while  in  a  passion  and  under  the  infiuence  of  drink,  he 
whipped  his  wife  with  a  switch  with  such  severity  as  to  leave 
the  marks  for  two  or  three  weeks,  and  that  he  kicked  her  once, 
tand  that  he  had  whipped  her  before,  but  not  with   the  same 
severity,  and  that  when  brought  to  trial  he  pleaded  guilty  ami 
submitted.     Taking  that  statement  to  be  true,  it  would  seem 
that  he  is  a  bad  man,  and  not  likely  to  have  much  of  the  |)uhlie 
sympathy,  and  it  is  not  unnatural  that  his  honor  should  have 
been  moved  to  some  severity  against  him.     But  still  thciH^  are 
two  questions  for  us  to  determine :  first,  is  the  sentence  of  the  court 
unconstitutional;  and,  second,  is  it  a  matter  which  we  can  review  i 
In  State   v.   Miller,  75  N.  C,  73,  which  Wiia  an  assault  with 
intent  to  kill,  the  defendant  was  sentenced  to  five  years'  iinpris- 
oiiniont    in    the  county  jail.     A  new  trial  was  given  on  utlicr 
grounds,  and  it  was  not  necessary  that  we  should  decider  wlicilicr 
the  punishment  was  lawful,  but  we  clearly  intimated  our  (i|mii()n 
that  it  was  not.     We  stated  that  the  oldest  member  of  this  (Mnirt 
did  not  remember  an  instiitice  where  any  person  had  been  iiiipii- 
oned  five  years  Iti  a  county  jail  for  any  crime  however  aggra- 
vated.    And  no  instance  was  cited  at  the  bai-,  in  the  arguinciit  nf 
that  case  or  this,  although  inquiry  was  mad;i  of  the  bar,  of  such 
a  term  of  imprisonment. 

We  have  examined  our  Revised  Code,  which  was  prior  to  our 
])enitentiary  system  and  to  our  (tonstitution  of  1808,  wlicii 
imprisonment  was  altogether  in  the  county  jails,  and,  unless  we 
have  inadvertently  overlooked  some  crime,  there  was  none  the 
punishment  whereof  was  for  so  long  a  time.  In  many  caso.> 
the  punishment  was  specified  ;  in  others  it  was  not  to  be  less  than 
eo  and  so;  in  others  not  exceeding  so  and  so,  and  in  others  at 
the  discretion  of    the  court;   these  last  being  generally  Kmnll 


STATE  r.  DUIVEU. 


489 


offemei^  wlicre  it  was  not  nsuai  to  punish  much  ;  and  to  cover 
all  cases  of  felony  wliere  the  pi  nishment  was  not  specific',  there 
was  the  following  provision :  "  Every  person  who  shall  here- 
after be  convicted  of  any  felony  for  which  no  s])ecific  ])nnish- 
ment  shall  be  prescribed  by  statute,  and  which  is  now  allowed 
the  benefit  of  clergy,  shall  bo  imprisoned  at  the  discretion  of 
the  court  not  exceeding  two  years  ;  or  if  the  offense  be  infa- 
mous, the  court  may  also  sentence  the  convict  to  receive  one  or 
more  public  whipi)ing8,  to  stand  in  the  pillory,  or  pay  a  fine, 
regard  being  had  to  the  circumstances  of  each  case."  Revised 
Code,  ch.  34,  sec.  27.  And  in  regard  to  misdemeanors,  where 
the  punishment  was  not  specific,  they  were  to  be  ^^unished  as  at 
coriinion  law :     Revised  Code,  cli.  34,  sec.  120. 

So  it  ap])oar8  that  it»  clergyable  felonies,  however  aggravated, 
imprisonment  was  limited  to  two  years  in  all  cases  where  the 
[innishinent  was  not  specific:  and  it  lias  escaped  our  attention  if 
ill  any  case  imprisonment  was  prescribed  exceeding  two  years, 
except  in  the  cases  of  embezzlement  by  the  state  treasurer  and 
in  counterfeiting  and  forgery,  whore  it  might  be  three  years. 
It  would  seem  to  be  clear  that  what  is  greater  than  has  ever 
been  prescribed,  or  known  or  inflicted,  must  be  "excessive,  cruel 
and  unusuah" 

Now,  it  is  true,  onr  terms  of  imprisonment  are  mucli  longer, 
but  they  are  in  the  penitentiary,  where  a  man  may  live  and  be 
iiiiide  useful ;  but  a  county  jail  is  a  close  prison,  wliere  life  is 
soon  in  jeopardy,  and  where  the  prisoner  is  not  only  useless,  but 
a  heavy  pul)lic  expense. 

Taking  it  to  be  that  the  sentence  is  unlawful,  is  it  subject  to 
review,  or  is  it  entirely  discretionary  with  the  jndge  below?  An 
nnlawful,  unconstitutional  judgment  of  an  inferior  court,  affect- 
ing the  liberty  of  the  citizen,  not  the  subject  of  review  by  the 
court  of  appeals,  where  every  order  or  judgment  involving  a 
matter  of  law  or  legal  inference  is  reviewable!  There  cannot 
be  a  doubt  about  it.     There  is  no  such  anomaly. 

It  is  true  that  we  find  very  little  authority  about  it,  which  is 
prob.ably  owing  to  the  fact  that  the  administration  of  our  crimi- 
n".l  law  is  so  uniformly  humane  that  there  is  seldom  occasion  for 
(•uniplaint.  Mr.  Justice  Story,  in  commenting  on  this  provision 
of  the  constitution  of  the  United  States,  says:  "Tlie  provision 
would  seem  to  be  wholly  unnecessary  in  a  free  government,  since 
it  is  scarcely  possible  that  any  department  of  such  a  government 


II  S"i"ti 


r 


1 


II, 


i. 


■i 


■I? 


AMERICAN  CRIMINAL  REPORTS. 


should  authorize  or  justify  sucli  atrocious  conduct.  It  was.  how- 
evor,  adopted  as  an  admonition  to  all  departments  of  the  national 
government,  to  warn  them  against  such  violent  proc^eedinj^s  as 
liad  taken  place  in  England  in  the  arbitrary  reigns  of  the  Stuarts. 
In  those  times  a  demand  of  excessive  l)ail  was  often  made  against 
persons  who  were  odious  to  the  court  and  its  favorites,  and  on 
failure  to  procure  it  they  were  committed  to  prison.  Enormous 
fines  and  amercements  were  also  sometunes  imposed,  and  cruel  and 
vindictive  punislnnents  inflicted.  Upon  this  subject  Mr.  Justice 
Blackstone  has  wisely  remarked,  that  sanguinary  laws  are  a  bad 
symptom  of  the  distemi)er  of  any  state,  or  at  least  of  its  weak 
constitution  :"     2  Story's  Com.  on  Const.,  sec.  1896. 

It  is  true  that  there  never  has  been  aiiything  in  o\ir  govern- 
ment, state  or  national,  to  provoke  such   provision,  yet  it  was 
thought  to  be  so  aj)pr()i)riate,  that  it  wu-<  adopted  into  our  l)ill  of 
rights,  and  has  ever  been  preserved  in  our  fundamental  law,  as  a 
"  warning."     Nor  was  it  intended  to  warn  against  merely  erratic 
modes  of  punishment  or  torture,  but  applied  expressly  to  "  bail," 
"fines"  and  "punishment."     And  the  earliest  application  of  the 
provision  in  England  was  in  1C89,  the  first  year  after  the  ad<ip- 
tion  of  the  bill  of  rights  in  1688,  to  xvoid  an  excessive  pecuniurv 
fine   imposed   upon   Lord  Devonshire,  by  tlie  court  of    kiii<r's 
bench :  11  State  Trials,  1354.     His  lordship  committed  an  as?auit 
and  battery  on  Col.  Cul})e])per  in  Whitehall,  and  was  tried  hei'oiv 
the  king's  bench,  and  fined  thirty  thousand  pounds.     It  does  uot 
appear  that  there  was  any  appeal,  but  the  case  was  cotisidei-ed  in 
the  house  of  lords,  and  is  very  valuable  for  what  was  said  and 
done.     There  were  three  objections  considered  by  the  house  ni 
lords  to  the  judgment  of  the  king's  bench.     1.  That  it  was  a 
breach  of  privilege.     2.  That  the  fine  w-is  excessive.     3.  The 
commitment  till  paid.     The  judges  of  king's  bench  were  suiii- 
moned  before  the  house  of  lords  to  give  their  reasons.     The  law- 
lords  were  asked  for  their  opinions,  and  after  full  considerati'  m, 
the  house  of  lords  declared  "that  the  fine  of  thirty  thousand 
pounds  imposed  by  the  court  of  king's  bench,  upon  the  Earl  of 
Devon,  was  excessive  and  exorbitant,  against  Magna  Charta,  tlio 
common  right  of  the  subject  and  the  law  of  the  land.''     In  tin' 
discussion,  it  was  said  :  "  The  law,  for  the  most  part,  left  tines  to 
the  discretion  of  the  judges,  yet  it  is  to  be  such  discrotidii  us  is 
defined  by  my  Lord  Coke,  fol.  u<),  ^(UKcntio  eat  disrei'ih're  p'-r 
legem  quid  sit  juntum^  not  to  [iroceed  according  to  their  own 


STATE  V.  DKIVER. 


491 


It  Wus,  li„w. 

|of  the  national 
prococ'i liners  as 
\o{  tlie  Stuarts. 
made  a^'aingr 
jorites,  and  on 
I"-  Enormous 
I,  and  cruel  and 
■ct  jVIr.  Justicv 
ws  ai-e  a  bad 
't  of  its  weak 
|6. 

n  onrgovern- 
"N  yet  it  was 
nto  our  hill  of 
2'ital  law,  aj!  a 
merely  erratic 
s.slj  to  "  hail," 
lication  of  the 
'tor  the  adnp. 
sive  pecuniaiv 
ui't  of   kiiiir's 
tted  an  assault 
18  tried  helorc 
■     It  does  UMt 
considered  in 
Was  said  and 
the  house  .if 
^hat  it  was  a 
've.     3.  T],e 
di  were  sum- 
!»s.     The  la«- 
onsideratii  n, 
'ty  thousand 
I  the  Karl  of 
<  Charta,  the 
d."     In  tho 
left  tines  to 
•rction  ah  is 
u'ci'Di'i'e  pi  r 
>  their  own 


will  and  private  affection,  for,  '  talis  discretio  discretionem  con- 
fmdit.''  So  the  question  is  not,  wliether  the  judges  could  tine 
my  Lord  Devonsliire,  but  whether  they  have  kept  themselves 
within  the  bounds  and  limits  which  the  law  has  set  them." 

And  again  it  is  said,  in  the  same  case :  "  It  is  so  very  evident 
;i8  not  to  be  made  a  question  whether,  in  those  things  which  are 
left  to  the  discretion  of  the  judges,  that  the  law  has  set  them 
bounds  and  limits  which,  as  God  says  to  the  waves  of  the  sea, 
•Hitherto  shalt  thou  go,  and  no  farther.'  *  *  *  But  if  the  judge 
may  commit  the  party  to  prison  till  the  fine  be  paid,  and  withal 
get  so  great  a  fine  as  is  impossible  for  the  party  to  pay,  then  it 
will  depend  upon  the  judge's  pleasure  whether  he  shall  ever  have 
his  liberty,  and  thus  every  man's  liberty  is  wrested  out  of  the  dis- 
posal of  the  law,  and  is  stuck  under  the  girdle  of  the  judges." 

Thus  it  appears,  both  by  precedent  and  by  the  i-eason  of  the 
thing,  and  by  express  constitutional  provision,  that  there  is  a 
limit  lo  the  power  of  the  judge  to  punish,  even  when  it  is 
expressly  left  to  his  discretion.  What  the  precise  limit  is,  can- 
not be  prescribed.  The  constitution  does  not  fix  it,  and  it  ought 
not  to  be  fixed.  It  ought  to  be  left  to  the  judge  who  inflicts  it, 
under  the  circumstances  of  each  case,  and  it  ought  not  to  be 
abused,  and  has  not  been  abused  (grossly)  in  a  century,  and  prob- 
ably will  not  be  in  a  century  to  come,  and  it  ought  not  to  be 
interfered  with,  except  iu  a  case  like  the  present,  where  the  abuse 
is  palpable.  And  when  that  is  the  case,  then  the  sleeping  power 
of  the  constitution  must  be  waked  up  to  protect  the  oppressed 
citizen.  The  power  is  there,  not  so  much  to  draw  a  fine  line 
close  to  which  the  judges  may  come,  but  as  a  "  warning  "  to  keep 
them  clear  away  from  it. 

An  argument  against  the  power  to  review  is,  that  it  cannot  be 
made  ])ra('ti('al,  for  loe  cannot  fix  the  punishment,  but  must  send 
the  case  back  to  the  court  below  to  fix  the  punishment,  and  in 
that  case,  the  judge  below  may  abate  so  little  of  the  punishment 
as  to  amount  to  nothing.  The  judge  below  will  do  no  such 
thing.  Our  judges  do  not  act  capriciously.  ^Ve  are  to  suppose 
that  the  error  already  committed  was  inadvertent,  aM('  that  the 
judge  below  will  do  precisely  right.  If  the  contrary  could  l)e 
supposed,  it  would  be  easy  to  correct  a  future  error,  as  the  i)ast 
is  corrected. 

Again,  it  is  said,  that  it  ought  to  be  left  to  the  pardoning 
power.     No,  it  ought  not.     The  judiciary  ought  to  bo  a  com- 


Ir 


l».,-.4' 


^M 


1 

i'\  ■-(» 

\m 

j 
j 

,.:'    \- ' 

•       ^ 

1 

II 

n 

U 

492 


AMERICAN  CRIMINAL  RKPORTS. 


pleto  systein,  capable  of  affordin<>;  over}'  remedy  while  it  lias  tlio 
subject  and  the  party  before  it.  After  these  have  passed  beyond 
its  action,  and  something  supervenes  to  make  it  necessary,  then 
the  pardoning  power  may  be  invoked,  and  seldom,  if  ever,  in 
any  other  case.  The  judiciary  ought  not  to  admit,  and  the  par- 
doTiing  power  ought  not  to  suppose,  that  it  has  done  its  work 
imperfectly. 

In  f<or(l  Devonshire's  case  a  safe  rnle  is  laid  down  by  which  to 
judge  of  the  reas()nal)leiu.'ss  of  punishment:  "There  are  two 
things  which  have  been  heretofore  looked  upon  as  very  good 
guides  (1)  what  has  formerly  been  exj)ressly  done  in  like  cases,  and 
(:2)  for  the  want  of  such  particular  discretion,  then  to  consider 
'hat  which  comes  nearest  to  it."'  If  these  rules  are  observed,  the 
^iuiishment  will  be  such  as  is  "usual,"  and,  therefore,  not 
'*  excessive"  or  "cruel."  We  have  already  said  that  the  punish- 
ment in  this  case  is  not  only  "  unusual,"  but  unheard  of,  and 
that  it  is  "  cruel."  It  is,  therefore,  in  violation  of  the  constitu- 
tion, and  it  is  our  duty  so  to  dechare  it. 

In  18()S-()9  the  legislature  passed  an  act  giving  to  justices  of 
the  peace  jurisdiction  of  assaults  and  batteries,  where  no  deadly 
weajjon  was  used  and  no  serious  damage  done.     And,  again,  in 
187'J-74r,  the  same  jurisdiction  was  given  where  there  was  no 
intent  to  kill,  and  no  deadly  weapon  used  or  serious  damage 
done.     And  a  magistrate  could    not    punish   by  imprisoiuiicnt 
exceeding  one  month.     In  the  case  before  us,  there  was  no  intt'iit 
to  kill,  no  deadly  weapon,  and  no  serious  (in  the  s(;nse  of  dan- 
gerous) damage  done.     That  would  seem  to  be  a  clear  expression 
of  the  legislative  will,  thtvt  the  punishment  in  this  case  ought  not 
to  exceed  one  month's  imprisomrient.     There  was  a  motion  here 
in  arrest  of  judgment.     But  that  catmot  be  allowed.     An  appeal 
in  a  criminal  case  vacates  the  judgment,  and  a  ('(•/•f/onn-i,  as  a 
substitute  for  an  appeal,  has  the  same  effect.     So  that  there  is  no 
judgment  below,  and  we  cannot  render  judgment  in  a  criminal 
case,  and  yet  the  verdict  of  guilty  stands  below,  and  the  verdict 
is  regular  and  proper,  and  there  must  be  a  judgment  upon  the 
verdict.     All  that  we  can  do  is  to  declare  that  there  is  error  in 
the  judgment  rendered,  and  have  our  decision  certitied,  to  the 
end  that  the  proper  judgment  may  be  rendered  below  :    iState  v. 
Cook,  Phil.,  535 ;  State  v.  Mannel,  4  Deo.  aiul  Bab.,  20. 

There  is  error.     This  will  bo  certified. 

Pkr  curiam.  Judgvient  reversed. 


McDonald  r.  state. 


493 


Si 


t '  ;; 


McDonald  v.  State. 

(45  Md.,  90.) 

Practice:    Erroneoux  KCntinre. 

An  appellate  court  on  reversing  a  judgment  because  the  sentence  imposed 
was  not  authorized  by  law,  has  no  power  to  impose  th(!  jiroper  sentence, 
or  to  remand  the  case  to  the  court  of  original  jurisdiction  for  that 
purpose. 

Miller,  J.  The  plaintiff  in  error  was  indicted  for  murder, 
and  on  his  trial  was  found  j^uilty  of  manslaughter,  and  not  guilty 
of  murder.  Upon  this  verdict  the  criminal  court  of  Baltimore 
city,  in  which  he  was  tried,  pronounced  judgment,  sentencing 
liiiii  to  "/y^  i/ears  imprisonment  in  the  jail  of  Baltimore  city," 
and  tliis  judgment  is  brought  before  us  for  review,  by  writ  of 
error. 

Tlie  punishment  prescribed  by  law  (act  of  1864,  ch.  39)  for  the 
crime  of  manslaughter  is  conlinement  in  the  penitentiary  for  not 
more  than  ten  years,  or,  in  the  discretion  of  the  court,  a  line  of 
not  more  than  live  hundred  dollars,  or  imprisonment  in  jail  for 
not  more  than  tioo  years,  or  both  fine  and  imprisonment  in  jail. 
The  attorney-general  admits  that  through  inadvertence  a  sentence 
was  imposed  upon  the  prisoner  which  the  law  does  not  authorize, 
and  concedes,  upon  the  authority  of  Watkhis  v.  The  State,  14 
Ind.,  412,  this  judgment  must  be  reversed.  That  is  undoubtedly 
so,  and  the  only  other  question  we  can  now  decide  is,  whether 
upon  such  reversal  this  court  has  the  power  to  impose  the  proper 
sentence,  or  to  remand  the  case  to  tlie  court  of  original  jurisdic- 
tion for  that  purpose.  In  the  absence  of  legislation  conferring 
that  authority  upon  this  court,  it  is  clear  it  has  no  power  to  dt) 
either  of  these  things.  In  Watkins  o.  The  State,  where  the  judg- 
ment was  reversed  for  a  similar  defect,  the  court  say,  "the  effect 
of  the  reversal  for  error  in  the  judgment  itself,  is  properly  stated 
by  the  counsel  for  the  plaintiff  in  error  in  his  argument.  It 
defeats  all  former  proceedings  in  the  cause.  This  will  abund- 
antly appear  by  reference  to  the  following  authorities  cited  by 
him  on  this  point :  Chitty's  Cr.  Law,  755 ;  4  !>!.  Com.,  3!)3 ; 
Hawkins,  book  second,  ch.  50,  sec.  19."  In  addition  to  these 
authorities  wo  refer  to  several  more  recent  decisions  of  the  Eng- 
lish and  Irish  courts  u])on  the  8ul)ject,  viz :     /?«»  v.  Ellin,  5 


-J?~rr 


It 

■i.l 


i       3  '-'.i 


AMERICAN  CRIMINAL  REPORTS. 


Barn,  and  Cress.,  395  ;  Khiff  v.  Bunne,  7  Adol.  and  Ellis.  58; 
/Silve/'nide  V.  The  Queen,  2  Gale  and  Davison,  617;  and  JIvlland 
V.  The  Queen,  2  Jubb  and  Syme,  357.  In  each  of  those,  and 
especially  in  the  iirst  two,  it  was,  upon  full  review  of  all 
previous  decisions,  denied  that  a  court  of  error  had  any  power 
in  a  case  like  this,  either  to  remand  the  record  to  the  court 
below  for  the  proper  jiidgment,  or  itself  to  pronounce  sueli 
judgment  as  the  law  authorized,  and  Hex  v.  KenwoHhij,  1 
Barn,  and  Cress.,  711,  which  was  cited  in  support  of  the  power 
to  remand,  is  there  shown  to  be  a  case  in  which  no  jml<jinmt 
had  in  fact  been  given,  and  it  was  therefore  remitted  back  to 
the  sessions  in  order  that  a  judgment  might  be  rendered,  hi 
this  country  also,  the  decisions  wherever  the  question  has  arisen, 
are  almost  uniform  and  to  the  same  effect.  It  was  so  decided 
in  several  cases  by  the  Supreme  Court  of  Massachusetts,  and 
we  need  refer  oidy  to  Christian  v.  The  Commonwealth,  5  Met., 
530.  After  these  decisions,  the  legislature  of  that  state  provided 
by  statute  that,  "whenever  a  final  judgment  in  any  criminal 
case  shall  be  reversed  by  the  supreme  judicial  court,  upon  a 
writ  of  error,  on  account  of  error  in  the  sentence,  the  court  may 
render  such  judgment  th.erein  as  should  have  been  rendered,  or 
may  remand  the  case  for  that  purpose  to  the  court  before  wlioni 
the  conviction  was  had,"  and  the  supreme  judicial  court  of  that 
Btate  has  since  acted  under  that  statute :  Jacquins  v.  The  Com- 
momoealth,  9  Cush.,  279.  In  N^ew  York  there  is  a  series  of 
cases  in  the  inferior  courts  to  the  like  effect,  and  in  Ratzhij  v.  The 
People,  29  N.  Y.,  121,  the  court  of  appeals  of  that  state  lield  it 
to  be  settled  law  that,  but  for  the  authority  conferred  upon  that 
court  by  the  statute  of  1863,  it  would  have  no  power  on  reversal 
of  the  judgment  of  the  Supreme  Court  in  tliat  case  for  error  in 
the  judgment  itself,  either  to  pronounce  the  appropriate  jiulg 
ment  or  remit  the  record  to  the  oyer  and  terminer,  to  give  such 
judgment.  The  statute  referred  to  declared,  in  effect,  that  the 
appellate  court  shall  have  power  upon  any  writ  of  error,  when  it 
shall  appear  that  the  conviction  has  been  legal  and  regular,  to 
remit  the  record  to  the  court  in  which  such  conviction  was  had, 
to  pass  such  sentence  thereon  as  the  appellate  court  shall  direct. 
There  are  also  numerous  cases  in  other  states  where  the  same 
question  has  been  incidentally  decided  in  the  same  way.  In  Em 
parte  Lange,  18  Wallace,  163,  the  judges  of  the  Supreme  Court 
of  the  United  States,  tlioiigh  differing  upon  other  points,  agre« 


McDonald  v.  state. 


495 


am]  Kllis.  .-,S; 
;  and  JloUand 
of  these,  and 
review  of  all 
lad  any  powit 
i  to  tlie  court 
'onounce  such 
Kenwoi'thtj,  1 
t  of  tlie  i)()\vor 
no  judijiumt 
nitted  back  to 
•endered.    In 
ion  has  arisen, 
was  so  decided 
acliusetts,  and 
oealtk,  5  Met., 
state  provided 
any  criminal 
court,  upon  a 
the  court  may 
n  rendered,  or 
;  before  whom 
!  court  of  that 
?  V.  The  Com- 
is  a  series  of 
^atzky  V.  The 
it  state  held  it 
■red  upon  that 
er  on  reversal 
30  for  error  in 
'opriate  jiulif 
,  to  give  such 
lect,  that  the 
Drror,  wlieii  it 
d  regular,  to 
tion  was  had, 
;  sliall  direct. 
3re  tlie  same 
way.     In  E» 
preme  Court 
Joints,  ai'ro« 


in  the  proposition  that,  apart  from  authority  conferred  by  the 
legislature,  appellate  tribunals  have  only  the  power  of  reversal 
where,  in  criminal  cases,  the  judgments  are  entire  and  not  such  as 
the  law  authorizes  to  be  imposed,  and  all  the  cases  on  the  subject 
are  collected  and  referred  to  in  the  dissenting  opinion  of  Mr. 
Justice  Clifford,  in  that  case.  We  have  been  able  to  find  but 
two  cases  which  are  in  even  seeming  conflict  with  the  great 
weight  and  current  of  judicial  precedent  and  authority  on  this 
question. 

One  of  these  is  the  case  of  Kelly  et  al.  v.  The  State,  3  Sm,  and 
Mar.,  578,  decided  by  the  high  court  of  errors  and  appeals  of 
Mississippi,  in  1844.  There  the  judgment  was  reversed  for  two 
reasons :  1st,  because  it  did  not  appear  in  the  record  that  the 
prisoners  were  personally  in  court  at  the  time  of  pronouncing 
the  sentence,  and,  2d,  because  the  sentence  did  not  set  forth  the 
time  from  which  the  imprisonment  was  to  date.  For  these  two 
errors,  say  the  court,  "  the  judgment  of  the  court  below  is 
reversed  without  disturbing  the  verdict,  and  the  cause  remanded 
with  directions  to  the  court  below  to  pronounce  its  judgment  in 
accordance  herewith,  having  first  duly  inquired  of  the  defend- 
ants whether  they  have  anything  further  to  urge  why  its  judg- 
ment should  not  then  be  pronounced."  No  question  was  made 
in  argument,  and  no  authority  is  referred  to  l)y  the  court,  in 
support  of  the  power  to  remand  thus  exercised,  and  this  has  led 
ns  to  examine  the  statutes  of  that  state  as  to  the  powers  conferred 
on  its  appellate  court  at  that  time.  As  we  expected,  we  find 
(Hutchinson's  Code,  927,)  that  that  court  was  clothed  with  very 
full  authority  in  such  cases.  They  had  power,  upon  the  reversal 
of  any  judgment  or  sentence,  to  render  such  judgment  or  pa-ifi 
svch  sentence  as  the  court  below  should  have  rendered  or  passed, 
and  the  power  to  remand  in  criminal  as  well  as  in  civil  cases, 
where  there  is  anything  uncertain  in  tlie  judgment  or  sentence, 
is  also  given  in  very  broad  and  general  terms.  We  think,  there- 
fore, the  court  in  this  case  rested  their  action,  not  upon  the  sup- 
posed possession  of  any  inherent  or  common  law  powers  to  that 
end,  but  upon  statutory  authority  well  understood  and  recognized 
in  tliat  state. 

The  other  case  is  that  of  Beale  v.  The  Commonwealth,  1 
Casey,  11,  decided  by  the  Supreme  Court  of  Pennsylvania,  in 
which  the  opinion  was  delivered  by  C.  J.  Lewis,  from  which 
Woodward,    J.,   dissented.     To  understand    what    weight,   as 


^ 


ipf  ,  )K«IIJIl.,)l.. 


r    < 


11 


49G 


AMERICAN  CUIMINAL  REPORTS. 


authority,  justly  attaches  to  tliis  case,  we  must  first  htok  to  the 
antecedent  decisions  and  legislation  on  this  subject  in  that  state. 
It  appears  that  in  the  course  of  the  argument  in  Drew  v.  The 
Commonwealth,  1  Whart.,  279,  which  took  j)lace  in  1835,  Rogers, 
J.,  referred  to  a  recent  case,  in  which  he  said  the  Supreme  Court 
had  decided  that  where  the  indictment  was  good,  and  the  trial 
good,  that  court  would  do  what  the  court  below  would  do 
after  a  new  conviction,  viz.,  sentence  the  party  de  novo  and 
aright.  In  the  following  year,  1S3G,  the  legislature  gave  express 
power  to  the  court  "  to  examine  and  correct  any  and  all  muniier 
of  errors  of  the  justices,  magistrates  and  courts  of  the  common- 
wealth, in  the  process,  proceedings,  judgments  and  decress,  (w 
well  in  criminal  as  in  civil  pleas  or  proceedings,  and  therouixm 
to  reverse,  modify,  or  affirm  such  jndgtiu'iits  and  decrees  or  pru- 
ceedings  as  the  law  shull  direct."  After  this  came  the  casi'  di 
Daniels  v.  Th>:  Commoiiwealth,  7  l»arr.,  ;}71,  in  wliicii  tlic 
opinion  was  delivered  by  Rogers,  J.  In  that  case  this  slatnto  is 
set  out,  and  the  court  say  that  by  it,  "  in  ad«lition  to  the  power  ti» 
reverse  or  affirm  heretofore  given,  we  have  authority  to  modify 
the  judgment — that  is,  to  change  its  form,  vary  or  qualify  it,  and 
this  as  well  in  criminal  as  in  civil  cases. 

It  would  certainly  be  better  if  the  court  had  power  also  to 
remit  the  record,  but  as  this  is  not  given  by  the  act  of  1836,  we 
must  examine  the  sentence,  and  do  right  and  justice  according 
to  circumstances,"  and,  accordingly,  acting  under  the  statute,  the 
court  struck  out  the  words  "hard  labor"  from  the  sentence, 
and  affirmed  it  in  other  respects.  It  appears  to  us  the  court  in 
that  case  clearly  decided  they  liad  no  power  to  reniiiml  tlie 
record,  and  that  their  only  j)ower  to  modify  the  sentence  was 
derive<l  from  the  statute.  Tlien  comes  the  case  referred  to,  (if 
Ih'idc  r.  The  Commonwealth^  in  which  (J.  J.  Lewis  says;  "The 
doubts  which  formerly  existed  respecting  the  ])o\vcr  of  the 
Supreme  Court  upon  reversing  a  judgment  in  a  criminal  c;isc, 
are  entirely  dissipated.  We  have  authorities  to  sliow  that  the 
Su])reme  Court,  on  reversal  of  a  judgment  in  a  criminal  cane, 
for  error  in  the  sentence,  has  power  to  puss  such  sentence  as  the 
court  below  ought  to  have  passed."  For  this  position.  Drew  )\ 
The  Commonwealth^  and  Daniels  v.  7' he  Commonwealth,  are 
first  cited.  AV^hat  these  eases,  and  es])eeially  the  latter,  decide, 
respecting  this  power,  and  whence  it  was  derived,  has  been 
stated.     Two  other  cases.  Commonwealth  v.  Kllis,  11  Mass..  4t>.'), 


McDonald  «.  state. 


497 


t  look  to  the 

;  in  that  stato. 
Drew  V.  The 

1835,  Rogers, 
apreme  Court 

and  tlie  trial 
>w   would  do 

de  novo  and 
!  save  express 
id  all  manner 

the  coniinon- 
tid  docress,  fw 

id  theivnijiin 
ecrot's  or  pni- 
le  tht'  ciisi'  (if 
n  whicli  till' 
this  statute  is 

the  jwwer  to 
ity  to  luodity 
pialiiy  it,  and 

:)0\ver  also  to 
t  of  1830,  wo 
ice  according 
le  statute,  the 
the  sentence, 
}  the  court  in 
remand  tlie 
sentence  was 
Ljferred  to,  df 
'says:  "The 
lower  t»r  the 
'I'imiiial  (msc, 
liow  that  the 
rimiiial  Ciiso, 
iitenco  as  the 
ion,  Dreu)  ><. 
mwealth,  ;iio 
utter,  dcciiK', 
3d,  has  lu'cii 
1  Mass.,  4t!r>, 


and  Kane  v.  The  People,  8  Wend.,  211,  are  also  added  in  the 
wiine  citation.  These  we  have  examined,  but  are  unable  to  per- 
ceive that  they  have  any  bearinj;  upon  the  propositions  stated. 
We  have  fully  shown  what  the  Massachusetts  and  New  York 
decisions  on  the  question  under  consideration  actually  are,  ami,  as 
respects  them,  there  can,  we  thiidt,  be  no  doubt,  lie  then  says : 
"  It  has  also  the  power  to  award  a  procedendo  in  a  criminal 
case."  For  this,  Rex  v.  Kenioorthy,  1  B.  and  C,  711,  is  cited, 
and  that  case  the  subsequent  Enu^lish  decisions  have  declared  was 
one  in  which  no  judgment  was  rendered  in  the  court  of  orijj^inal 
jurisdi(^tion.  That  case  is,  therefore,  no  authority  for  the  posi- 
tion that  a  proi-i'dendo  can  be  ordered  after  a  rciversal  of  a  judg- 
ment in  a  criminal  case,  for  error  in  the  sentence  itself.  He 
then  adds,  "and  it  may,  in  its  discretion,  remit  the  record,  with 
itrders  to  proceed  on  the  indictment  after  the  reversal  of  an  erro- 
neous judgment."  For  this,  Coiiiiixonwealth  v.  Mi- lu.s/<on,  8 
Serg.  and  K.,  442,  and  Commonwealth  v.  Church,  1  P)urr.,  110, 
are  cited.  These  were  cases  brought  up  by  the  state,  from  judg- 
ments quashing  the  indictments,  and  the  court  reversed  the 
quashing  orders,  sustained  the  indictments,  and  remanded  the 
cases  to  the  circuits,  that  the  parties  might  be  tried  under  them. 
There  the  parties  had  never  been  tried,  and  no  judgments  had 
ever  been  pronounced  against  them.  If  nothing  more  was 
meant  to  be  asserted  by  the  proposition  than  was  decided  in 
these  cases,  we  have  no  occasion  to  quarrel  with  it.  A  large 
number  of  cases  in  this  and  other  states  might  be  cited  to  the 
sjimo  effect.  But  he  then  says:  "The  act  of  16th  of  June, 
1836,  conferred  no  new  powere  in  this  respect.  It  was  designed 
to  remove  doubts  which  hud  arisen  in  consequence  of  conflicting 
decisions."  If,  however,  the  court,  in  Daniels  v.  The  Comrnon- 
wctdfh,  did  not  decide  that  this  act  conferred  a  new  power  upon 
the  co\irt  as  to  their  control  over  judgments  in  criminal  cases, 
they  were  certainly  unfortunate  in  the  language  thoy  there  use, 
or  we  are  unfortunate  in  being  unable  to  comprehend  it.  Nor 
have  we  been  able  to  find  in  the  published  reports  any  anterior 
conflicting  decisions  from  which  doubts,  as  to  the  power  of  the 
court  in  such  cuses,  would  huve  urisen.  We  may  have  over- 
looked them,  or  the  reference  may  be  to  some  unreported  and 
unpublished  decisions  of  that  character.  But  certain  it  is  that, 
neither  in  the  title,  preamble  nor  other  parts  of  this  act,  is  there 
any  reference  to  such  doubts  or  conflicting  decisions.  Such 
Vol.  n.— 33 


n 


498 


AMERICAN  CRIMINAL  REPORTS. 


reference  or  recital  is  frequently,  if  not  usually,  made  in  stiitutes 
])assed  for  such  purposes.  The  learncrl  chief  justice,  for  whose 
abilities  and  well  earned  reputation  we  have  ^nat  resi)i'ct,  tlieii 
proceeds  thus : 

"The  coniiuon  law  embodies  in  itself  sufficient  reason  aiid 
connnon  sense  to  reject  the  nion.strous  do(ttrine,  that  a  ])risom'r 
whose  ^niilt  is  established  by  a  regular  verdict,  is  t<»  escape  pnii- 
ishiiient  alto<rether  because  the  court  committed  an  error  in  pass- 
in<5  the  sentence.  If  this  court  sanctioned  such  a  ride  it  would 
fail  to  perforin  the  chief  duty  for  which  it  was  establishetl.  Our 
duty  is  to  correct  errors  and  to  minister  justice.  l>ut  siu-ji  a 
course  would  perpetuate  error  and  produce  the  most  intolerable 
injustice." 

But  to  these  propositions  we  cannot  yield  assent.  No  snch 
doctrines  have  ever  been  announced  by  the  tribunals  that  for  cen- 
turies have  made,  interpreted  and  a<lminiBtered  the  c(»mmun  law. 
On  the  contrary,  the  courts  of  En<i^land,  in  administerinj;'  justice 
in  criminal  cases  have,  save  in  rare  and  exceptional  inhtancois, 
been  watchful  of  the  liberties  of  the  sui)ject8,  and  have  taken 
care  they  should  not  be  oppressed  by  the  crown.  Their  doctrine 
has  been  that  men  must  be  punished  accordiu'^  to  the  law  of  the 
land,  atid  that  to  punish  them  otherwise  is  tyranny.  It  would, 
we  think,  be  a  startling  novelty  to  the  great  judges  of  the  Eng- 
lish courts,  to  be  told  that  it  is  monstrous  and  intolerabh^  that  a 
party  should  escape  punishment,  who  has  been  duly  convicted  of 
crime,  but  upon  whom  a  sentence  has  been  imposed  which  the 
law  does  not  authorize.  From  the  many  cases  wherein  they  have 
made  decisions  that  have  led  to  that  result,  we  infer  they  have 
regarded  such  escapes  as  less  fraught  with  evil  consetpuinces  than 
for  courts  to  attempt  to  nsurj}  authority,  in  order  to  inflict  jnm- 
ishments.  The  decision  which  wo  have  thus  c.xamiiu^d  at  length 
is,  in  our  judgment,  exceptional,  and  in  conflict  with  the  whole 
current  of  authorities,  both  in  England  and  in  this  country. 
We  cannot  adopt  or  follow  it,  and  shall  not  exercise  any  such 
powers  unless  they  are  conferred  u))on  this  court  by  the  legisla- 
ture. Is  tiiere  any  law  which  has  given  this  court  the  power  to 
pass  a  proper  sentence  in  this  case,  or  to  remand  it  to  the  crimi- 
nal court  for  that  purpose?  Wc  know  of  none.  The  foui'tcciitli 
and  sixteenth  sections,  of  article  five  of  the  Code,  have  no  appli- 
cation to  such  cases.  They  give  the  court  no  power  to  modify 
criminal  sentences,  or  to  direct  them  to  be  modified  hv  the  infe- 


CO^IMONWEALTII  v.  FOSTER. 


499 


rior  courts;  The  simie  provisions  were  in  force  when  Watkinfi 
r.  T/ir  State  was  decided,  and  in  that  case  this  question  was  fully 
ar^'ucd.  The  reversal  of  that  judj^ment  without  &  procedendo  is 
conchisivc  of  it.  "Whether  the  plaintiff  in  error,  hj  thus  request- 
ing and  ubtaining  his  discharge  from  this  indictment,  has  waived 
the  protection  wliich  the  law  provides  against  a  second  jeopardy, 
HO  tliat  he  can  be  re-indicted  and  retried  on  the  same  charge,  as 
has  been  suggested  by  some  jurists  and  text  writers,  is  a  question 
wc  are  not  now  at  liberty  to  decide.  It  has  not  been  argued 
on  either  side  by  counsel,  and  we  should  be  stepping  far  beyond 
the  line  of  duty,  if  not  committing  a  grave  impropriety,  in  now 
oxpressing  any  opinion  upon  it.  We  can  only  say,  with  C.  .T. 
Sliaw,  in  Christian  v.  The  Commonwealth,  that,  "whatever 
other  remedy  the  state  may  have,  it  is  not  competent  for  this 
court  to  pass  a  ni!W  sentence  upon  this  prisoner,  nor  to  remit  the 
case  to  the  criminal  court."  Our  power  is  limited  to  a  simple 
reversal  of  the  judgment. 

Judgment  reversed. 
Decided  June  16tli,  1876. 


CoMMONWEAI/ni    V.    FoSTEB. 

(123  Mass.,  317.) 

Pkactice:     Erroneous  sentence. 

An  indictment  contained  four  counts,  and  a  general  verdict  of  guilty  was 
returned.  The  court  sentenced  the  defendant  on  the  first  two  counts, 
and  made  no  order  continuing  the  case  for  sentence  on  the  other  counts. 
Afterwards,  and  at  a  subsequent  term,  the  judgment  not  having  been 
reversed,  and  the  defendant,  being  imprisoned  under  it,  was  brought  from 
prison  on  a  habeas  corpvn  and  a  fresh  sentence  imposed  on  him  for  the 
offense  charged  in  the  third  count:  Ildd,  that  the  last  sentence  was  erro 
ncous  and  void.  There  can  be  but  one  judgment  upon  an  indictment, 
and  consequently  a  judgment  and  sentence  upon  one  count  definitely  and 
conclusively  disjioses  of  the  whole  iiulicttnent,  and  operates  as  an  acquit- 
tal upon,  or  discoiitinimnce  of  the  other  counts. 

Gkav,  C.  J.  At  tli(!  February  term,  1873,  of  the  superior 
court  in  Suflolk,  the  defendant  was  indicted  in  four  counts, 
appearing  upon  the  face  of  the  indictment  to  bo  for  distinct 
ofT(!Hses,  and  eacli  of  which  charged  him  with  uttering  and  pub- 
lishing as  true  a  false,  forged  and  counterfeit  promissory  note. 
The  notes  described  in  the  first,  second  and  fourth  counts  wero 


^f^m^WT"    ''■*    ^-f 


/«;  /* 


ft? 


E||li;U 


r)00 


A.MKKICAN  CRIMINAL  UKI'OIITS. 


payable  to  the  order  of  tlio  respective  rnnlcers,  and  were  not 
alluijed  to  be  indorsed  by  them.  The  note  described  in  the  third 
count  was  payable  to  the  order  of  the  defendant,  and  no  oltjco- 
tion  is  made  to  the  sufficiency  of  tliat  count.  Tlie  defcndimt 
pleaded  not  guilty,  and  the  jury  returned  a  general  vonlict  of 
guilty.  Exceptions  alleged  by  the  defendant  to  the  rulin<rs  at 
the  trial,  not  affecting  the  validity  of  the  indictment,  were  over- 
ruled by  (his  court  in  Noveujber,  1873 :  Commonwealth  v.  Fos- 
ter, Hi  Mass.,  311. 

At  December  term,  1873,  of  the  superior  court,  to  which  the 
indictment  had  been  continued,  the  defendant  was  sentenced  upon 
the  first  count  to  imprisonment  in  the  state  prison  for  five  years, 
and  upon  the  second  count  to  a  like  imprisonment  for  five  years, 
to  take  effect  after  the  expiration  of  his  sentence  upon  the  first 
count,  and  to  stand  committed  until  removed  in  pursuance  of  his 
sentence.  Upon  that  judgment  and  sentence,  the  defendant,  in 
June,  1S70,  sued  out  a  writ  of  error,  returnable  at  the  Septt'in-' 
her  term,  1876,  of  this  court.  The  attorney-general  pleaded  in 
7udlo  f'.st  erratum,  but  now  admits  that  that  judgment  is  errone- 
ous and  must  be  reversed.  See  Common  ukhiWi  v.  Dallinger,  US 
Mass.,  439.  At  the  December  term,  187(>,  of  the  superior  court, 
the  indictment  was  brought  forward  by  order  of  the  court,  u])on 
motion  of  the  district  attorney,  and  was  cojitinued  to  the  January 
term,  1877,  when  the  defendant  was  brought  by  writ  of  hahcas 
corpus  from  the  state  prison,  and,  being  set  at  the  bar  to  receive 
sentence  upon  the  third  count,  moved  in  arrest  of  judgment 
that,  it  appearing  by  the  record  that  judgment  had  been  entered 
upon  this  indictment  at  the  December  term,  1873,  and  the 
defendant  had  been  thereby  sentenced  to  imprisonment  in  the 
state  prison,  and  was  now  serving  out  such  sentence  therein,  and 
the  judgment  had  not  been  reversed,  although  a  writ  of  error  to 
reverse  it  was  pending,  the  court  could  not  enter  up  any  new 
judgment  on  the  same  indictment.  The  court  overruled  tliis 
motion,  and  passed  sentence  on  the  defendant,  upon  the  third 
count,  of  imprisonment  in  the  state  prison  for  si.x  years  and  nine 
months,  to  take  effect  after  the  ex])iration  of  the  sentence  passed 
upon  tlie  first  and  second  counts.  To  this  ruling  and  sentence 
the  defendant  alleged  exceptions.  The  records  of  the  superior 
court  show  no  other  order  relating  to  this  case.  But  the  usual 
general  order  w.  made  at  the  end  of  the  December  term,  187;?, 
and  of  each  succeeding  term  down  to  December,  1876,  "that  all 


Km 


WfMjHltMM 


COMMONWEALTH  v.  FOSTER. 


501 


matters  and  things  not  acted  upon  stand  continued,  judgment  la 
entered  up  and  tlie  court  is  adjourned  without  day." 

By  our  law,  several  offenses  of  the  same  general  nature,  and 
punishable  in  the  same  manner,  may  be  joined  in  one  indiet- 
mont ;  and,  in  case  of  a  general  verdict  of  guilty  ui)on  all  tlit- 
counts,  the  sentence  may  be  either  entire  upon  the  wliole  indict- 
laent,  or  distinct  upon  each  count,  and  to  take  effect  upon  the 
expiration  of  a  previous  sentence,  and  a  defect  in  one  count  does 
not  invalidate  the  sentence  upon  others :  Josslyn  v.  Comvum- 
malth,  6  Met.,  236;  Kite  v.  Commonwealth,  11  Met.,  581; 
Commonwealth  v.  Costello,  120  Mass.,  358  ;  Commonwealth  v. 
Brown,  121  Mass.,  69.  This  case  presents  the  question,  whether 
a  defendant,  who  has  been  found  guilty  generally  upon  an  indict- 
ment containing  several  counts  for  distinct  offenses,  and  has  been 
sentenced,  on  some  of  the  counts,  to  imprisonment,  and  has  been 
imprisoned  under  such  sentence,  can,  at  a  sulisequent  term,  be 
brought  up  and  sentenced  anew  u])on  another  count  in  the  same 
indictment. 

No  precedent  in  su])port  of  this  mode  of  proceeding  in  a  crim- 
iniil  case  has  been  produced.  It  was  contended,  in  the  learned 
aririiinent  for  the  coniinonwealth,  that  there  is  no  distinction  in 
this  respect  between  criminal  and  civil  cases ;  and  that  in  a  civil 
action,  if  the  declaration  contains  two  counts  for  distinct  causes, 
judgment  may  be  rendered  upon  one,  and  a  writ  of  error  sued 
out  upon  such  judgment,  and  the  matter  of  the  other  coimt  be 
afterward  tried  and  determined,  and  judgment  rendered  upon  it. 
Tleference  was  made  to  two  early  English  cases,  -which,  upon 
examination,  do  not  appear  to  us  to  establish  any  such  general 
rule. 

In  the  first  of  those  cases,  in  the  36th  year  of  Henry  VI.,  on  a 
writ  of  entry  8ur  dlsneisin  in  the  common  bench,  to  recover  cer- 
tain land  and  rent,  the  issue  as  to  the  land  was  tried  and  found 
for  the  demandant,  and,  while  the  rent  yet  depended  in  pica,  the 
demandant  had  judgment  to  recover  the  land  and  damages  there- 
for, anil  prayed  for  'a  fieri  facias,  returnable  ]>resently,  and  had 
it,  and  the  slieriff  \\\i\\\'\\G([  fieri  feci.  "  Littleton  prayed  that  the 
TMoneys  might  be  delivered  to  the  defendant,  and  that  he  might 
have  a  supersedeas  to  the  sheriff  until  the  plea  be  determined, 
for  before  tliat  the  plea  be  wliolly  determined  he  cannot  have  a 
writ  of  error,  because  it  is  one  original."  Prisot,  C.  J.,  said : 
"  III  debt  au'ainst  twf)  by  divers  prawipos,  if  there  be  error  in  a. 


502 


AMERICAN  CRIMINAL  REPORTS. 


Pi '    ' 


f 


i  Jin 


!■! 


^IJ 


judt^inoiit  agaijist  the  one,  lie  sliall  have  a  writ  of  error,  and  yet 
the  oriiijinal  is  here;  for,  in  those  originals,  in  \vhi(!h  tlicro  am 
divers  counts,  and  there  is  error  against  the  one,  he  shall  linvc  a 
writ  of  error  and  the  record  of  his  count,  and  the  plea  shall  ho 
severed  from  the  original  and  removed  into  the  king's  Ik'hcIi. 
and  jet  the  original  remains  here.  Hut  where  there  is  one 
original  and  one  count,  he  cannot  have  a  writ  of  error,  for  the 
writ  and  the  record  cannot  be  in  the  king's  bench  and  also  here. 
But  bring  us  a  special  writ  of  error,  if  you  will,  and  we  will 
advi.se,  when  we  see  the  writ,  whether  it  shall  be  allowed  or 
no:"     Fitz.  Ab.,  Fieri  Facias,  PI.,  3. 

Of  that  case  it  is  to  be  observed:  1st.  The  opinion  of  the 
court,  upon  the  question  whether  the  tenant  should  seek  relief 
from  the  judgment  and  execution  for  the  land  and  damages,  by 
a  supersedeas  of  proceedings  until  the  matter  of  the  rent  should 
be  determined,  or  by  suing  out  a  writ  of  error  immediately,  \v;is 
reserved  until  a  special  writ  of  error  should  be  presented.  2(i, 
The  dictum,  as  to  "debt  agauist  two  by  divers  pri\!ci[»es"  harj 
in  view  the  case  of  several  pnvcipes  against  different  persons  for 
different  claims,  which,  though  ajiparently  ])ermitted  by  the 
practice  of  that  time  to  be  joined  in  one  original  writ,  were 
really  equivalent  to  two  origin<als,  and  were  so  regarded  :  lieir. 
I'rev.,  130,  a;  Vin.  Ab.  Prsecipe,  quod  reddot,  V.  IM.,  0,  7; 
Com.  Dig.  Pleader,  3  B.,  7 ;  as  in  the  case  in  whiidi  our  jiractice 
act  allows  parties  having  different  liabilities  upon  one  written 
contract  to  be  joined  in  one  action,  with  several  counts  and  sev- 
eral judgments:  (ren.  Sts.,  c.  121),  sec.  4;  Ihai^kes  v.  Pli'iUlj).^, 
7  Gray,  284;  Wainesit  Bank  v.  Butt  rick,  11  (J  ray,  3.S7;  Colt  r. 
Learned,  118  Mai-.c,  380.  3d.  In  the  saine  court,  two  years 
earlier,  on  a  qnare  impedit  against  the  bishop,  the  protendcti 
patron  and  his  clerk,  on  which,  before  the  plea  of  the  bislKjj)  was 
determined,  judgment  was  given  against  tin;  others,  and  tliey 
undertook  to  sue  out  a  writ  of  error,  the  opinion  of  the  (tourt  is 
thus  reported : 

"  Prisot  et  tola  ciiria.  It  cannot  be ;  for  a  writ  of  error  recites 
all  those  names  which  are  party  to  the  original  writ,  and  then  it 
says,  et  si  judicium  inde  redditnm  fuerit  tunc  vccordtun  illiid 
habeatis /  wherefore,  that  proves  that  it  cannot  be  removed 
l>eforo  that  the  whole  matter  be  determined  :  "  34  Hen.  VI.,  11, 
38,  41 ;  S.  C.  Fitz.  Ab.  Error,  PI.,  35.  The  other  case  relinl 
on  by  the  commonwealth  w^as  decided  in  the  17th  year  of  .Tanics 


l.'l  U  k  II 


CO:«M(JNWEA.LTII  ,-.  POSTER 


I.,  and  was  a  ijito  warranto  brought  against  (^isaok  and  other 
iildcrmcn  of  T)iil)liii,  pretending  to  be  a  corporation,  and  to  have 
certain  special  privileges. 

The  court  of  king's  bench  in  Ireland,  as  to  the  special  privi- 
leges, gave  judgment  of  seizure,  ouster  and  fine ;  and,  as  to  the 
question  of  corporation,  curia  advisare  oult.  The  defendants 
brought  the  case,  on  writ  of  error,  to  the  king's  bench  in  Eng- 
land :  Case  of  the  Corporation,  of  Dnhlln,  Palmer,  1.  At  the 
first  argument,  Montagu,  C,  J.,  said  :  "  They  ought  not  to  have 
given  judgment  for  any  part  until  they  were  advised  of  the 
whole,  for  a  judgment  ought  not  to  be  given  by  parcels;"  and 
Doddridge,  J.,  "as  to  that,  held  that,  inasmnch  as  a  complete 
judgment  for  this  cause  is  not  yet  given,  therefore  the  record  is 
not  removed,  for  the  writ  of  error  is  si  judicium  redditam  est, 
wiiicli  must  be  intended  a  complete  judgment:"  S.  C,  now., 
Le  Roy  v.  Cusache,  2  Tlol.  R.,  113,  116.  IJut  the  court  after- 
wards decided  that  the  writ  of  error  was  well  brought,  and, 
])eing  of  opinion  that  there  was  no  error,  affirmed  tlie  judgment : 
Tahner,  5,  9 ;  2  Kol.  K.,  125. 

These  rejwrts  contain  some  ohiter  dicta  that  the  court  below 
might  afterwards  render  judgment  upon  the  matter  not  disposed 
of;  but  the  only  point  adjudged,  as  best  stated  in  another  report 
of  the  case,  in  (yhief  Justice  Treby's  notes  to  Dyer's  Reports 
(which,  as  observed  by  liuller,  J.,  in  Miiward  v.  Thatcher,  2 
T.  R.,  81,  84,  are  good  authority),  was  "  that  the  writ  of  error 
was  well  brought,  for  the  judgment  is  quod  cajn'atur  pro  fne, 
by  which  they  shall  be  imprisoned;  and  if  they  shall  not  have  a 
writ  of  error,  they  will  be  without  remedy : "  The  King  v. 
Fraternity  of  Dublin,  Dyer,  291,  h,  Note.  There  can  be  no 
doul)t  that  any  judgment,  on  which  a  person  is  liable,  and  is,  in 
fact,  imprisoned,  is  such  a  final  judgment  as  to  entitle  him  to 
sue  out  a  writ  of  error :     Hryan  v.  Bates,  12  Allen,  201,  207. 

Lord  Coke  treated  the  case  of  a  judgment,  under  which  a  per- 
son suffers  immediate  loss  or  injury,  as  well  as  that  of  a  judg- 
ment upon  one  of  two  several  praecipes,  as  exceptions,  depend- 
ing upon  the  peculiar  circumstances,  to  the  general  rule  that  a 
writ  of  error  will  not  lie  until  the  whole  case  is  determined : 
Metcalfe's  Case,  11  Rep.,  38  a,  39  a,  41  a;  S.  C,  nom.,  Wood 
V.  Medcalfe,  1  Rol.  R.,  84,  85;  Metcalf  v.  Wood,  Cro.  Jac, 
.'?5fi.  We  have  not  been  able  to  find  any  English  case  within  the 
last  two  centuries,  in  whi(;h  a  writ  of  error  has  been  maintained 


d 


.".<)J 


AMKRICAX  ( 


NAF>  HKI'ORTS. 


pr- 


^ 


4, 


N' 


ill  a  civil  action,  Itoforc  all  the  counts  were  disposed  of.  On  tlii> 
contrary,  it  .seems  to  be  now  established,  that  a  writ  ul'  error  can- 
not be  brought  by  the  defendant,  before  judgment  upftu  ;ill  tin- 
counts;  nor  by  tlie  plaintiff,  until  all  tlie  pleas  have  been  dis. 
posed  of,  oven  if  there  has  been  judgment  for  the  defeiidant 
n])on  a  plea  wliich  goes  to  the  whole  cause  of  action :  Sumndv. 
Indin,  (\  East.,  3;W ;  Brrkham  v.  Kniijld,  7  Scutt,  340;  S.  C,  7 
Dowl.,  40i>;  ToUon  v.  Kaye,  (S  Man.  and  Gr.,  530;  S.  C,  7 
Scott  N.  K.,  22'2. 

In  this  commonwealth,  if  a  declaration  contains  several  counts 
for  distinct  causes  of  action,  and  the  jury  return  a  verdict  iipcm 
one  and  disagree  as  to  the  oth  -  final  judgment  is  not  reiulcivd, 
nor  can  the  rulings  upon  tin  count  be  revised  by  ai)p('al  or 

bill  of  exceptions,  until  the  ui.  .  counts  liave  been  disposed  of: 
Hall  V.  nn'f/ffs,  18  rick.,  503;  Case  v.  Ladd,  2  Allen,  i:iu; 
TlanUng  v.  Pratt,  111>  Mass.,  188.  To  the  same  effect  arc 
Pect  V.  JfcO'raw,  21  Wend.,  667,  and  United  State/s  v.  Uiiuinlt, 
11  How.,  22,  32. 

Under  a  statute  allowing  the  government  to  sue  out  a  writ  of 
error  "to  review  any  juugnient  rendered  in  favor  of  any  defend- 
ant upon  any  indictment,"  except  in  case  of  his  acquittal  by  tlic 
jury,  it  was  held  by  the  court  of  a})peals  of  the  state  of  New 
York,  that  a  writ  of  cjTor  could  not  be  brought  on  a  judgment 
in  favor  of  the  defendant  upon  a  demurrer  to  one  count,  wliilc 
an  issue  of  fact  upon  another  count  was  still  pending;  Paqih 
V.  Merrillf  4  Kernan,  74. 

By  the  law  of  England  and  of  this  commonwealth,  when  a 
verdict  of  guilty  has  been  returned  upon  one  count  of  an  indict 
ment,  the  defendant  may  be  lawfully  sentenced  thereon,  althongli 
no  verdict  has  been  returned  uj)on  another  count :  Latliain  i\ 
The  Queen,  5  B.  and  S.,  635;  S.  C,  W  Cox  C.  C,  516;  Ii<hj,'r- 
ton  V.  ComrDonwealth,  5  Allen,  514.  In  Laiham  v.  The  Queen ^ 
it  was  indeed  said  that  the  counts  were,  to  all  intents  and  pur- 
poses, separate  indictments,  and  the  defendant  might  afterwards 
be  tried  on  the  second  count;  but  this  point  was  not  before  tlic 
court.  On  the  other  liand,  in  Edtjevtoa  v.  Commonwealth,  this 
court  was  of  opinion  that  there  could  be  oidy  one  judgment 
upon  the  indictment,  and  that  consequently  a  judgment  and 
sentence  upon  one  count  definitely  and  conclusively  disposed  of 
the  whole  indictment,  and  operated  as  an  ae(juittal  u|)(>ii,  or  dis- 
continuance of,  the  other  count.     And  the  same  view  has  boon 


COMMONWEALTH  v.  FOPTER 


505 


affirini'd  by  (k'cisions  in  otlior  stiitcs :  (iiirnfhcr  v.  Peoph'.  '24 
N.  y..  100:  (fh'hv.  Conimomimilth  22  IN'im.  St.,  ;35l ;  ^V<>lu- 
;orj>ff''n  V.  Stafe,  7  Black  f.,  186 ;  Stoltz  v.  People,  4  Scam..  108  ; 
!^tate  V.  IIUl,  30  Wis.,  410;  Kinh  v.  Conunomrmlfh,  9  Lcij^li. 
♦)27;  yabors  v.  Siu/e,  i\  Ala.,  200;  Morris  v.  State,  8  Sin.  aiul 
Marsh,  762. 

We  have  no  doubt  that  this  is  the  true  view,  and  that  the 
same  ])rinciple  apj)lies  to  a  case  in  which  a  verdict  tjf  <fiiilty  is 
returned  upon  all  the  counts,  and  sentence  is  passed  upon  some 
of  them — especially  where,  as  in  the  i)resent  case,  all  the  counts 
are  ajyainst  the  same  person,  and  no  special  order  is  made  at  the 
term  at  which  the  jud<i;ment  is  rendered,  continuing  the  case  for 
further  proceedin<^s.  The  sentence  upon  the  first  two  counts, 
thouirh  erroneous  and  liable  to  be  reversed  by  writ  of  error,  yet. 
having  been  rendered  by  a  court  which  had  jurisdiction  of  the 
narty  and  of  the  offense,  on  a  verdict  returned  in  due  form,  was 
rot  absolutely  void:  Conunmtwcalth  v.  Lord,  Z  Met.,  328: 
Kite  V.  Commonwealth,  11  Met.,  581,  585;  Ex  parte  Lange,  18 
Wall.,  163,  174.  The  sentence  might  have  been  amended  at  the 
8iuue  term,  and  before  any  had  been  done  in  execution  thereof ; 
Commomoealth  v.  Wei/moiit/i,  2  Allen,  144.  But  after  the 
defendant  had  been  impi-isoned  under  it,  and  the  term  had  been 
adjourned  without  day,  the  court  could  not  amend  it,  or  set  it 
iiside  and  impose  a  new  sentence  instead :  Pex  v.  Fletcher. 
Iluss.  and  Ry.,  58  ;  Brotvn  v.  liice,  57  Maine,  55 ;  Comition- 
irealth  v.  Mai/lo?/,  57  Penn.  St.,  291 ;  Fx  parte  Lange,  above 
cited.  This  is  not  like  a  case  in  which  the  indictment  has  been 
ordered  by  the  court  to  be  laid  on  file,  w-ithout  any  judgment 
against  the  defendant,  as  in  Commonwealth  v.  Doiodiean''s  Bail, 
115  Mass.,  133.  The  result  is,  that  it  was  not  in  the  power  of 
the  superior  court,  after  having  rendered  one  judgment  and  sen- 
tence against  the  defendant,  upon  which  he  had  been  since 
iiaprisoned,  to  order,  at  a  subsequent  term,  that  the  case  should 
be  brought  forward  and  another  sentence  imposed. 

Exceptions  sustained. 


506 


AMERICAN  CRIMINAL  REPORTS. 


li 


M 


.iT 


aU 


Statk  v.  La  page. 

(57  N.  H.,  245.) 

Practice  :     Evi'den^;^ — Character  of  respondent —  Viemig  dispoidtion. 

The  prosecution  cannot  attack  the  character  of  the  prisoner  unless  he  first 
puts  that  in  issue  by  offering  evidence  of  his  good  character. 

The  prosecution  cannot  show  the  defendant's  bad  character  by  sliowing  par 
ticular  acts. 

Tlie  prosecution  cannot  show  in  the  prisoner  a  tendency  or  disposition  to 
commit  the  crime  with  which  he  is  charged. 

The  prosecution  cannot  give  in  evidence  other  criminal  acts  of  the  prisouer, 
unless  tliey  are  so  connected  by  circumstances  with  the  particiilur  crime 
in  issue  as  that  the  proof  of  one  fact  with  its  circumstances  has  some 
bearing  upon  the  issue  on  trial  other  than  such  as  is  expressed  iu  the  fore- 
going three  propositions. 

From  Merrimack  circuit  court. 

Indictment,  charging  the  rcBpondent  with  tlie  murder  of  Josie 
A.  Langmaid,  who  was  killed  October  4,  1875,  about  nine  o'clock 
in  the  morning,  while  passing  over  the  academy  road,  in  Pem- 
broke, on  her  way  to  school.  Her  head  was  severed  from  \m 
body,  and  removed  a  distance  of  a  quarter  of  a  mile.  Anotlior 
})art  of  lier  body,  including  one-half  or  two-tliirds  o^  the  vagiiiii. 
was  cut  out  and  carried  away,  and  was  never  recovered.  Nu 
post-7nortem  examination  of  the  body  was  made,  with  a  view  to 
iuscertaining  whether  the  victim  had  been  violated. 

The  government  (ilaimed  that  the  murder  was  committed  ''in 
])erpetrating  or  attempting  to  perpetrate  rape." 

As  tending  to  show  that  the  prisoner  had  an  intent  to  coniinit 
such  a  crime,  and  that  he  was  making  antecedent  preparatiuiis 
therefor,  the  state  was  permitted  to  show,  by  one  Clarence  11. 
Coclirau,  that  on  October  1,  abtmt  half-past  eiglit  o'clock  in  the 
morning,  as  he  was  passing  al(»ng  the  academy  road  on  lii.-*  wav 
to  school,  when  he  arrived  within  about  thirty  rods  of  the  place 
of  the  murder,  he  saw  a  man  jump  into  the  bushes  on  the  side  of 
the  road,  lie  testified  :  "  I  only  saw  him  pass  into  the  bushes. 
He  passed  into  the  bushes,  springing,  as  if  in  haste."  Jle  did 
not  recognize  the  man. 

Adin  (t.  I'owler  was  permitted  to  testify  to  conversations  with 
the  respiindent,  on  September  24-,  2.')  and  2<5,  as  follows;  I  w;i,< 
to  work  out  in  front  of  the  liouse  on  that  night  (Septetnber  24) 


^^^^ 


■s«. 


STATE  «.  LAPAGE. 


507 


)r  diKposition  to 


oininitti'd  '-in 


sorting  potatoes.     Mr.   Lapage   came   out  and  took  hold  and 

helped  xis  for  a  few  moments ;  and  while  we  were  to  work  there 

my  sister  came  home.     A  gentleman  brought  her  home,  and  she 

(rot  out  of  the  wagon  and  went  into  the  house ;  and  Mr.  Lapage 

wanted  to  know  who  that  was,  and  I  told  him  ;  and  he  wanted  to 

know  then  if  she  had  been  to  Snncook.     I  told  him  no,  she  had 

been  to  school.     Then  he  wanted  to  know  which  way  she  went 

to  got  there,  and  I  told  him,  as  wiill  as  I  conld,  how  to  go,  and 

pointed  out  toward  the  academy,  that  way  (pointing),  and  he  said 

that  that  must  be  the  same  way  that  he  came  when  he  came  out 

to  Mr.  Kimball's;  and  that  was  all  that  was  said  that  niglit. 
**»  *         **         *»#'» 

The  next  night — Saturday  night — I  went  to  carry  him  part  of 
the  way  home.  I  carried  him  down  Buck  street  as  far  as  the 
house  of  Mr.  Locke,  and  when  we  got  down  to  Russ's  corner  he 
wanted  to  know  then  if  there  is  where  my  sister  wont  to  school. 
I  told  him  no,  and  pointed  out  toward  the  academy  again,  and 
told  him  two  miles,  or  a  mile  and  a  half — I  don't  remember 
exactly,  but  I  believe  I  told  him  a  mile — "  and  then  turn  to  your 
right  and  go  up."     And  that  was  all  that  was  said  that  night. 

Saturday  I  carried  my  sister  on  the  street,  and  left  her  there  at 
a  place  whore  she  roomed.  Then  T  went  to  Suncook  and  got  Mr. 
Lapage,  to  bring  liiui  out.  *  *  We  ciiiiie  down  Buck  street. 
*  *  When  we  went  past  there  (the  academy  road)  I  remember 
of  telling  that  that  is  the  road  my  sister  went  on  when  she  went 
to  school. 

Edward  L.  Mahair  testified  that  he  saw  the  respondent  while 
he  was  at  work  for  Mr.  Fowler,  threshing.  While  thus  occupied 
about  a  week  before  the  murder,  a  young  lady  passed  by. 

When  the  girl  passed  by  he  was  threshing  in  the  barn,  and  he 
spoken  to  me  and  asked  me  where  that  gal  was  going.  I  told  him 
I  didn't  know.  Then  he  asked  me  what  her  name  was.  T  tuld 
him  her  name  was  Sarah  Prentice.  Then  he  wanted  to  know 
where  she  lived.  I  told  him — went  to  the  door,  and  showed 
him  as  near  as  I  could.  *  *  *  Then  he  wanted  to  know 
who  was  going  with  her.  I  told  him  I  didn't  know.  And  that 
is  all  he  said  that  day.  *  *  I  was  up  there  the  next  day,  and 
was  going  through  the  barn,  and  he  stopped  me.  and  said, 
"  Where  did  that  gal  go  that  went  down  by  ?"    T  told  him  I  didn't 


Iff- 

!  ;*  I' 

; :  », 
■  .  1  i'i 

■f 


'JPIII*  "II  ■#  ^ 


508 


AMERICAN  CRIMINAL  REPORTS. 


W 


n 


.  >    1g 


m 

;..| 

know  whether  she  went  into  Mr.  Fowler's  or  went  further.  He 
wanted  to  know  who  went  with  her.  I  told  him  I  couldn't  toll 
him  ;  I  didn't  know  who  went  with  her.  Then  he  asked  me  wlm 
she  was  and  where  she  lived,  ajrain,  and  I  showed  him  ;  and  then 
the  next  time  he  asked  me  who  went  with  her,  I  told  him  I 
didn't  know.  He  said  he  wondered  which  road  she  went  on  the 
most.     I  told  him,  "  I  guess  she  goes  on  this  road  the  most." 

The  witness  then  repeated  an  ohscene  and  vulgar  remark  and 
inquiry  made  by  the  respondent  concerning  the  girl. 

Iliratn  Towle,  and  Harriet  A.  N.  Towle,  his  wife,  testified,  in 
substance,  that  on  Saturday,  October  second,  about  nine  oVlock 
A.  M.,  thev  were  I'iding  over  the  Academy  road,  and  when  uhoiit 
fifty  or  sixty  rods  from  the  place  of  the  murder,  they  met  tlio 
respondent  carrying  a  stick  behind  him.  The  stick  was  decrihod 
as  being  similar  in  all  respects  (about  three  feet  long,  four-sidod, 
about  one  and  a  quarter  inches  square,  whittled  at  one  end  for  a 
handle)  to  a  stick  produced  in  court,  which  had  been  found, 
broken  and  stained  with  blood,  near  the  place  of  the  murder. 

Alversia  Watson  testified  as  follows:  I  live  in  AUeiistown. 
Have  a  son  and  two  daughters  ;  my  youngest  daughter  is  attend- 
ing school  at  Pembroke  academy ;  did  not  attend  school  last  fall, 
but  taught  in  Ilooksett ;  I  go  over  Chester  turnpike  to  get 
there;  she  came  home  Friday  nights,  and  went  back  Sundays; 
first  part  of  term  she  walked  ;  I  went  with  her — gijuerally  went 
about  a  mile  and  three-quarters.  Saw  Lajiage  on  that  road  once, 
in  the  last  part  of  Sei)tember,  on  Sunday;  saw  him  standiiiir 
about  a  mile  from  my  house  beside  the  road,  opiiiisitc  snmc 
bushes;  my  daughter  was  with  me  ;  noticed  notliing  in  his  hiuuU 
when  I  first  saw  him.  Saw  him  again  about  half  a  mile  rurtlur 
on;  he  was  coming  towards  mo;  tin's  was  two  weeks  before  I 
heard  of  the  murder;  he  had  something  in  his  hainl  the  second 
time  I  saw  him ;  it  was  a  stick,  or  cane ;  think  that  the  sti<d<  was 
a  Jiewly  cut  sti(!k;  think  it  was  larger  than  the  nt'wk  found  in 
the  woods  of  the  murder;  had  it  in  his  right  hand.  Tiie  second 
time  I  saw  him  he  was  coming  along  behind  \m\  alxmt  a  liun- 
<lrod  feet;  I  watched  him  by  looking  behind  me;  was  ahout 
twelve  feet  away  when  I  last  saw  him  ;  he  was  moving  rapidly 
toward  me,  partly  running;  my  daughter  was  very  much  friglit- 
ened,  and  was  crying;  it  was  between  four  and  five  in  the  after- 
noon when  I  saw  him  the  first  time;  saw  him  next  time  half  a 
mile  further  on  in  the  road,  following  on  after  nie ;  had  boon 


STATE  V.  LAPAGE. 


509 


walking;  turning  to  look  at  my  daughter,  saw  a  man  picking 
berries  on  top  of  a  hill ;  when  I  turned  to  look  at  my  daugliter, 
saw  Lapage  going  into  the  bushes ;  went  about  half  a  mile  fur- 
ther with  my  daughter ;  sat  on  top  of  the  hill  till  I  thought  my 
daughter  had  got  out  of  hearing — about  fifteen  minutes,  I  think ; 
George  Mack  (the  man  who  was  picking  berries)  waited,  and 
came  home  with  me.  The  person  I  met  with  a  club  was  Lapage, 
the  prisoner. 

Cross-examination.  My  daughter  and  I  were  going  to  Hook- 
sett  ;  it  was  on  Sunday ;  it  is  four  miles  from  my  house  to  where  she 
taught  school ;  went  with  her  about  two  miles ;  there  are  chestnut 
woods  along  the  road ;  first  saw  the  man  about  a  mile  from 
home,  he  was  just  outside  of  the  road ;  he  was  about  fifty  feet 
away  then,  standing  still ;  did  not  see  him  again  until  I  had 
passed  the  place,  and  turned  back  and  saw  him  again ;  he  stood 
still  till  I  passed  out  of  his  sight  by  a  turn  in  the  road ;  it  was 
two  or  three  minutes'  walk  before  I  got  out  of  sight  of  him ; 
went  with  my  daughter  more  than  a  mile ;  went  nearly  half  a 
mile  before  I  saw  him  again ;  he  was  coming  in  the  road ;  could 
have  seen  a  man  quite  a  little  distance  ;  when  I  saw  him  last  he 
was  partly  running  towards  me,  and  came  to  within  a  few  feet  of 
me;  saw  the  man  picking  berries  there,  near  Lakin's  shanty,  a 
short  distance  away ;  saw  no  one  else  but  Mr,  Mack's  little  boy; 
tlie  man  with  the  stick  went  into  the  woods  on  the  opposite  side 
from  where  Mr.  Mack  was.  The  man  I  saw  was  not  very  tall, 
with  black  whiskers,  tan-colored  overalls,  and  gray  mixed  coat. 
Wore  a  dark  hat.  Next  saw  the  man  in  jail ;  can't  tell  when  ; 
went  there  at  the  request  of  Mr.  Ilildrcth ;  he  mentioned  no 
name  of  any  one  at  the  jail,  but  wished  me  to  go  and  see  if  there 
was  any  one  there  that  I  had  seen  before.  Mr.  Ilildreth,  Ilattie 
Gault  and  some  others  went  to  the  jail  with  me ;  Mr.  Sargent 
asked  me  to  go  and  look  in  every  cell  and  see  if  there  was  any 
one  that  I  Imd  seen  there;  went  in,  and  when  I  saw  Lapage, 
knew  him  at  once  by  his  looks  and  features ;  did  not  notice 
Lipage's  moustache  when  I  met  him  in  the  road ;  don't  think 
his  beard  was  as  long  in  jail  as  when  I  saw  hiiu  in  the  road. 

Re-direct.  My  attention  was  called  to  some  clothing  at  the 
jail,  and  I  picked  out  a  coat  that  I  thought  was  like  the  one  he 
wore.     (Coat  shown,  and  thought  to  be  the  same  by  witness.) 

Matthias  Mercy  testified  as  follows:  I  know  Annie  Watson; 
saw  her  on  Chester  turnpike  otu'  Sun<lny  lnHt  September;  saw 


»,  ( 


1^ 


610 


AMERICAN  CRIMINAL  REPORTS. 


lier  abont  two  and  a  half  or  three  miles  from  Snncook  Siiw-mill  • 
was  in  the  road  when  I  met  her ;  had  not  seen  her  before ;  said 
nothing  to  her;  sat  down  on  a  rock  beside  the  road ;  saw  Lapaire 
while  I  sat  there;  I  knew  Lapage  before;  he  was  ninniinr 
towards  the  girl ;  when  he  came  up  to  me  lie  faced  towards  tne ; 
his  face  was  red  and  excited ;  he  had  been  running  half  a  iiiilc, 
and  more  too ;  he  never  said  anything  to  me ;  he  looked  rijrht 
towards  her ;  he  slacked  up  a  little,  and  then  started  o(f  on  a 
run ;  don't  know  whether  he  saw  me  or  not. 

Cross-examined.  I  had  seen  Lapage  before  I  saw  him  in  the 
road ;  saw  him  in  his  house  in  Potter's  block ;  saw  him  in  the 
road  on  Sunday — the  last  Sunday  in  the  month  ;  saw  a  man  and 
woman  that  day ;  their  names  were  Palmer ;  they  live  in  Allons- 
town  ;  saw  them  when  I  was  going  up,  and  the  girl  when  I  came 
back  ;  went  up  as  far  as  Lakin's  hill,  turned,  and  came  back ;  it 
is  about  two  miles  from  Suncook  to  Lakin's  hill ;  saw  Lapage  as 
I  was  coming  back  from  Lakin's,  about  five  o'clock  at  night; 
met  the  Watson  girl  the  other  side  of  Lakin's  hill ;  I  walked 
about  a  quarter  of  a  mile  and  sat  down  ;  heard  Lapage  running  in 
half  a  minute;  saw  Lapage  walk  up  the  hill,  and  begin  to  run 
when  he  reached  the  to]> ;  this  was  after  he  piissed  me. 

Anna  A.  Watson  testified  that  she  was  the  daughter  of  Mrs. 
A.  Watson,  and  taught  school  in  Ilooksett  last  Sei)tember ;  came 
home  Friday  nights  and  returned  Sunday  nights,  usually.  On 
Sunday  night,  a  fortnight  before  Josio  Langmaid  was  killccj  (in 
Monday,  she  met  two  persons  on  the  road  ;  met  T.  Mai-cy  on  the 
road ;  she  and  her  mother  were  followed  by  a  man  that  Sunday; 
he  was  in  the  bushes,  partly  bent  over,  and  she  noticed  he  had 
dark  whiskers.  As  they  were  going  up  the  hill  l)y  a  shanty  she 
looked  back  and  saw  the  man  again,  coming  after  her,  some  ways 
front  where  she  first  saw  him,  and  he  was  on  the  side  of  the  road, 
as  near  as  across  this  room  ;  he  had  a  stick  in  his  hands,  travdinfr 
fast;  he  was  walking,  and  he  nearly  overtook  us.  She  wa.s  8o 
frightened  that  she  thought  she  would  go  up  the  hill  as  soon  as 
possible,  and  in  a  few  minutes  she  saw  Mr.  Mack ;  the  man  dii;- 
appeared  in  the  woods,  and  she  did  not  see  the  man ;  ho  went 
into  the  woods  again ;  after  her  mother  left  her  she  ran ;  she 
could  not  identify  the  man,  she  was  so  frightened  at  the  tinio. 

Julienne  Jlousse  testiticd  that  she  resided  in  Joliet.  Canada, 
and  WU8  a  sister  of  Joseph  Lapagc's  wife,  and  know  him;  saw 


H' 


STATE  V.  LAPAGE. 


>11 


hiin  last  four  years  ago  last  Juno,  before  seeing  hiui  in  Concord ; 
gaw  iiiin  at  her  home  in  Desier  Marion. 

Wont  to  a  ])asture  to  milk  cows  while  living  at  St.  Beatrice, 
Canada,  and  met  Lapage  there;  when  I  arrived  at  the  pasture 
the  cows  were  not  there ;  Lapage  was  ahove  in  the  pasture,  with 
a  bulfalo  robe  mask  on  his  face,  a  home-made  faded  red  shirt, 
and  pair  of  linen  pants,  with  a  leather  belt  around  him,  and  a 
pine  root  in  his  hand  the  size  of  her  arm,  and  about  three  feet 
long ;  he  was  four  or  five  rails  from  her.     A  rail  is  ten  feet ;  the 
place  was  not  in  sight  of  any  honse ;  it  was  seven  o'clock  in  the 
morning,  June,  1871 ;  he  tried  to  catch  her ;  she  shouted  and 
tried  to  run  away ;  after  she  had  gone  four  or  five  rails  he  overtook 
her,  caught  hold  of  her,  and  she  turned  round  and  pulled  the 
mask  off  him  and  recognized  Lapage  by  his  face  ;  he  then  rolled 
his  bead  into  her  skirt  and  tried  to  choke  her.     After  he  choked 
her  she  turned  on  her  belly,  and  then  he  rubbed  coarse  sand  intd 
her  eyes  and  mouth ;  after  she  was  choked  and  lost  her  strength 
he  outraged  her;  lost  her  strength  and  mind,  and  did  not  know 
when  he  loft  her ;   she  was  gone  two  hours  before  she  reached 
the  house,  which   was  ten    acres  away,   or  about  one-third  of 
a  mile ;   he   did   not  strike  her  with  the  stick,  but  committed 
rape  upon   her;  after  coming  to,  she  went  to  her  home.     lie 
clioked  her  throat  with  his  hand,  which  left  black  marks  upon 
her  throat.     The  marks  were  upon  her  throat  for  a  month,  and 
her  neck  was  very  black  where  his  fingers  were,  and  for  a  month 
she  had  great  difticulty  in  eating  and  drinking;  was  twenty-seven 
voars  old,  and  never  married ;  Lapage  was  married  at  that  time, 
and  lived  twenty-five  or  thirty  acres  from  her  home ;  saw  Lapage 
the  next  day,  but  had  no  conversation  with  him  ;  was  living  with 
a  Mr.  Mario!i  then ;  had  never  seen  or  spoken  to  him  since ;  he 
wont  to  the  United  States  at  once. 

Cross-examined.  First  talked  of  the  outrage  upon  her  to 
Joseph  Lajeunnessc  and  his  daughter,  the  same  day  at  nine 
o'clock,  they  being  at  Marion's  house  at  the  time.  Three  chil- 
dren of  Marion,  the  oldest  seven  years  old,  and  Lajeunnesse's 
family,  were  the  only  ones  in  the  house ;  couldn't  tell  where  the 
Lajeunnessc  family  now  lived,  except  that  it  was  in  a  place  called 
Acton ;  they  left  St.  Beatrice  three  years  next  March,  she 
thought;  next  talked  of  the  outrage  with  Mr.  Marion  and  his 
wife,  at  three  o'clock  the  same  afternoon  ;  employed  no  doctor 
for  her  injuries ;  Lapage  first  seized  her  by  the  throat.    After 


K  ;t*. 


|r  ^';J. 


m 


m 


I 


I'      F 


I'-  .li 


1     ^ 


I.  't: 


^■■S^'T^'^'T' 


"m 


,    ;  ^^ 

f  ' 

\1 

It: 

1; 

w 

t 

512 


AMERICAN  CRIMINAL  REPORTS. 


she  was  down  on  tlie  gronnd,  he  grabbed  her  by  the  Imck  to 
throw  her  down,  and  attempted  to  commit  the  outrage,  when 
she  screamed,  and  he  seizea  her  throat.  He  turned  her  over 
after  he  clioked  lier,  and  tliis  was  after  tlie  sand  was  put  into  her 
eyes  and  mouth,  at  which  time  she  was  sensible;  but  slie  lost  her 
senses  when  he  comniittcd  the  outrage,  and  <lid  not  know  when 
she  recovered  lier  senses,  but  was  gone  two  hours  before  she  got 
back  to  the  house.  She  pulled  the  mask  off  so  far  as  to  see  his 
eyes,  and  she  knew  the  man  before  she  pulled  the  mask  from  hini. 
The  mask  was  tied  with  two  black  strings,  and  she  pnlleil  it 
down  so  she  saw  his  forehead  ;  had  a  hat  on  when  she  liist  saw 
him,  and  when  she  grabbed  his  mask  his  hat  fell  off.  Ilu  tried 
to  murmur  a  few  words  of  English,  so  as  to  diKgnise  liimself. 
She  understood  that  Lapage  know  that  she  knew  liiiii,  and  m 
tried  to  disguise  himself  by  attempting  to  talk  English.  8ht' 
had  no  talk  with  him,  but  screamed;  Lapage  had  a  farm,  and 
worked  on  it,  which  belonged  to  Edwartl  l^crrault.  Spula;  to 
Edward  Perrault  about  the  outrage  upon  her.  She  asked  liim 
if  Lapage  was  at  home,  and  he  said  he  was  not,  but  had  started 
for  the  States.  She  never  said  to  Perrault  that  she  did  not  know 
who  it  was  that  assaulted  her,  and  had  no  conversation  with  him 
al)ont  the  outrage. 

To  the  admission  of  all  tho  foregoing  testimony  the  respond- 
ent excepted. 

Ilattie  M.  Gault  testified  as  follows :  Lived  on  Pembroke  street, 
a  half  mile  this  side  of  the  academy,  and  attended  that  schuol 
( )ctober  -4,  and  reached  the  school  about  8.30  that  morning  ;  bell* 
rung  at  8.25  and  8.55  o'clock ;  stood  in  the  door  of  the  avadcinj 
and  saw  Lapage  pass  the  building,  and  was  as  coniident  of  it  iu 
she  could  be ;  he  had  an  axe  on  his  shoulder,  and  turned  down 
the  academy  road,  and  she  watched  him  as  far  as  she  could  see 
him  on  that  road.  Next  saw  him  at  the  jail,  and  identified  liini 
as  the  num  who  passed  the  academy. 

Concerning  tho  foregoing  evidence,  tho  court  charged  the  jurj 
as  follows : 

"  You  have  heard  the  testimony  of  Julienne  Rousse  to  the 
effect  that  in  June,  1871,  tliis  prisoner  committed  a  rape  n|K)ii 
her.  In  considering  this  evidence  (if  you  believe  the  witness), 
you  will  be  required  to  use  careful  discrimination  of  the  way  and 
manner  in  which  it  is  to  be  applied  to  this  case,  if  it  is  to  ho 
applied  at  all. 


■lii 


i 


STATE  «.  LAPAGE. 


513 


«  We  have  admitted  the  evidence,  not  because  it  is  necessarily 
connected  with  tlie  issue  which  yon  are  to  try — which  is  the  guilt 
or  the  innocence  of  the  prisoner  of  the  offense  with  wliicli  he 
is  here  and  now  charged — bnt  becanse  it  may  have  a  legal  bear- 
ing upon  that  issue  in  the  way  which  I  shall  endeavor  to  explain, 
and  to  which  I  invite  your  most  careful  attention.  It  may  be 
your  duty  to  reject  the  evidence  entirely,  and  put  it  out  of  the 
case  and  out  of  your  minds.  It  may  be  your  duty  to  consider 
it.  It  is  a  fundamental  principle  of  law  that  evidence  that  a 
defendant  committed  one  otfense  cannot  be  received  to  prove 
that  he  committed  another  and  distinct  offense.  This  principle 
we  must  take  care  not  to  violate ;  and,  therefore,  you  are  not  to 
regard  the  evidence  of  Julienne  Rousse  as  any  proof  or  evidence 
that  the  prisoner  killed  Josie  Langmaid.  Therefore,  unless  you 
find  from  other  evidence,  entirely  independent  of  that  of  Julienne 
Rousso,  that  the  prisoner  killed  and  murdered  Josie  Langmaid, 
you  must  reject  her  evidence  altogether. 

"  The  evidence  is  open  to  your  consideration,  if  at  all,  only  so 
far  as  it  may  seem  to  you  to  bear  upon  t\iQ  character  oi  the  hom- 
icide of  Josie  Langmaid  ;  oidy  as  it  may  bear  upon  the  question 
whether  she  was  murdered  by  the  prisoner  in  perpetrating  or 
attempting  to  perpetrate  rape. 

"Our  statute  declares  that  'All  murder  committed  by  poison, 
etiirving,  torture,  or  other  delil)erate  and  premeditated  killing, 
or  coiiiinitte<l  in  attempting  to  perpetrate  arson,  rape,  robbery  or 
hurghiry,  is  murder  of  the  first  degree ;  and  all  murder  not  of 
the  first  ilegree  is  murdcn-  of  the  second  degree.' 

'"And  if  the  jury  shall  find  any  prisoner  guilty  of  murder, 
thev  shall  by  their  verdict  find  also  whether  it  is  of  the  first  or 
second  degree.' 

"  I F  yon  find,  from  other  evidence  in  the  case  than  that  of 
Julienne  llousse,  that  the  defendant  killed  Josie  Langmaid  delib- 
erately and  premeditatedly,  or  in  perpetrating  or  attem])ting  to 
perpetrate  rai)e,  you  may,  and  your  duty  is  to  reject  her  testi- 
mony altogether.  Miit  if  you  are  not  so  satisfied  l)y  all  the  other 
evidence  and  eircuiiistauees  of  the  ease,  you  may  consider  her 
evidence.  1  need  hardly  say  that  you  must  be  satisfied  upon 
this  point,  that  the  prisoner  is  the  iinin  who  committed  the  rape 
upon  Julienne  Kousse. 

"The  evidiiiiee,  you  see,  therefore,  bears  only  iipon  the  ques- 
tion of  the  intention  of  the  j)risoner  in  killing  Josie  Langmaid, 
Vol.  11.-33 


f 


i 


u  i 


# 


mfmmrw  !iw"!-9f  ■',.'■ ' 


614 


AMERICAN  CRIMINAL  REPORTS. 


and  thus  upon  the  degree  of  guilt,  *.  e.,  wliether  the  offense  ig 
murder  of  the  first  or  second  degree. 

"  Now,  '  the  unlawful  intent  in  a  particular  case  may  gome- 
times  be  inferred  (not  necessarily,  but  it  may  be  inferred)  from 
a  similar  intent  proved  to  have  existed  in  previous  transactions.' 

"  The  principle  upon  which  such  evidence  is  admitted  is  that, 
*  though  the  prisoner  is  not  to  be  prejudiced  in  the  eyes  of  tlie 
jury  by  the  needless  admission  of  testimony  tending  to  prove 
another  crime,  yet,  whenever  the  evidence  which  tends  to  prove 
the  other  crime  tends  also  to  prove  this  one,  not  merely  hy  show- 
ing the  prisoner  to  be  a  bad  man,  but  by  showing  the  j'urticuliir 
bad  intent  to  have  existed  in  his  mind  at  the  time  who.,  he  did 
the  act  complained  of,  it  is  admissible.' 

"  If,  in  this  case,  you  iind  it  necessary  to  show  the  conniiission 
of,  or  the  attempt  to  commit  a  rape  upon  Jctsie  Langniaid,  in 
order  to  tind  the  ])risoner  gnilry  of  murder  in  the  lirst  (io<free, 
and  the  evidence  of  the  mutihition  and  concealment  of  the  pri- 
vate parts  of  lier  body  are  not  siiHicii.;nt  to  satisfy  you  of  that 
fact,  then  you  may  iiKpiire  what  other  motive  induced  liiiu  to 
kill  her. 

''  Does  the  testimony  of  Julienne  R(»usse,  or  any  other  evi- 
dence in  the  case,  tend  to  show  the  existetice  in  the  mind  of  the 
prisoner  of  a  motive  or  passion  which  would  render  the  coniniis- 
eion  of,  or  an  attempt  to  commit  a  rape  upon  Josie  Langniaid, 
more  probaljle  than  it  would  otherwise  seem  to  you  ^  hoes  it 
or  not  ten<l  to  show  that  such  a  lustful  intent  existed  in  the  heart 
of  the  prisoner  at  the  time  as  woidd  render  the  commission  of  a 
rape  more  probable?  Does  this  evidence  supj)ly  a  motive  for 
the  commission  of  the  offense  ? 

"  The  crime  committed  upon  Jnlientie  Rovisse  was  four  years 
and  more  antecedent  to  the  oifense  under  consideration.  Since 
that  time  a  change  may  have  taken  place  in  his  mind.  Tiiore 
lias  been  time  for  repentance,  and  tiie  Instful  disposition  he  i)ore 
then  may  have  been  eradicated,  'i'iie  more  remote  the  evidence 
of  this  mental  condition,  the  less  force  and  wi-ight  luloiig  toil. 

"lint  in  connection  with  this  part  of  3'our  incpiiry,  /.  <'.,  cdii- 
cerning  the  ])resent  intention,  and  whether  a  histful  dis|)osition 
still  remained  in  the  ))risoners  heart,  you  may  consi<kir  the  evi- 
dence of  Adin  G.  Fowku',  of  tiie  prisoner's  iiwpiiry  (»n  tiiree  dif- 
ferent occasions  concerning  Fowler's  sister,  and  where  she  went 
to  school,  and  the  road  she  took  to  get  there  (within  a  fortnight 


STATE  r.  LAPAGE, 


515 


of  the  murder) ;  of  .young  Mahair  concernins:  Sarah  l^rentice, 
the  way  she  traveled,  and  tlie  obscene  reinnrk  eonceniinc;  lier ;  of 
Mrs.  Watson,  her  (hiughter  Anna,  and  Mattliias  Mercy,  concern- 
iiiff  his  pursuit  of  Anna  about  two  weeks  before  tlie  murder. 

"And  here  it  is  proper  to  remark,  tliat  if  tlie  prisoner  killed 
Josie  Langniaid,  it  is  not  at  all  necessary  that  any  lustful  desire 
or  any  animosity  toward  her  in  part  leu  lar  should  l)e  shown,  ])ra- 
Tided  she  became  the  victim  of  his  lustful  and  murderous  intent. 
If  the  intent  to  commit  rape  and  munler  u])on  sotne  one  else,  or 
upon  any  girl  whom  by  chance  he  miirht  encounter,  was  consum- 
mated in  an  attack  upon  Josie  Langmaid,  the  indictment  is  sus- 
tained." 

Ko  exceptions  were  taken  to  the  charge. 

The  respondent  was  convicted  of  murder  in  the  first  degree, 
and  sentenced  to  be  hanged. 

The  respondent  tendered  this  bill  of  exceptions,  which  was 
allowed ;  and,  in  transferring  the  same  for  the  consideration  of 
the  superior  court,  the  circuit  court  reserved  and  transferred  all 
questions  as  to  the  exercise  of  disci-etion.  Transferred  by  Fos- 
ter, C.  J.,  C.  C,  and  Rand,  J.,  C.  V,. 

Lewis  W.  Clark,  uftofncij-geni  ral  (with  whom  were  W.  W. 
Fhtndft's,  so/icitor,  and  ('.  I*.  >Sa/tfjoni\  for  the  state. 

There  were  twoquestiojis  for  the  jury  :  1st.  Was  the  defend- 
ant the  i)erson  who  killed  the  deceased?  2d.  If  he  was  the 
slayer,  did  he  kill  her  in  perpetrating  or  attempting  to  perj>e- 
trate  rape  ?  No  exceptions  were  taken  to  the  charge.  Under 
an  unexceptionable  charge,  and  upon  other  testimony  than  that 
(if  Julienne  lluusse,  the  jury  have  answered  the  first  question  in 
the  iiltiniiative. 

I.  The  only  question  of  law  raised  by  the  bill  of  excei)tion8  is, 
wlietlier  the  evidence  objected  to  is  admissible  tor  any  purpose. 
Does  this  evidence  have  a  legal  tendency  to  show  that  the 
(lefciuhint  killiMl  the  deceased,  or  that  he  intended  to  connnit  a 
rape  upon  her? 

The  burden  was  on  the  state  to  prove  the  first  degree  of  mur- 
der. Unless  the  state  proved  that  degree  beyond  all  reasonable 
doul)t,  the  defendant  could  not  be  found  guilty  of  that  degree. 
The  degree  was  as  distinct  and  separate  a  point  to  l)e  proved  by 
the  state  as  the  fact  that  there  was  such  a  person  as  Josie  Lang- 
maid,  the  fact  that  she  is  dead,  the  fact  that  she  died  a  violent 
death,  the  fact  that  her  death  was  not  accidental,  the  fact  that 


15  i 


m9 


AMERICAN  CRIMINAL  REPORTS. 


:'  *." 


FA.  It 


1  '■'' 

*  f  V 

#' 

; 

::l'^:\ 

1 

4'' 

she  did  not  commit  suicide,  or  the  fact  that  the  defendant  is  the 
person  who  killed  her.  In  cases  of  this  kind  we  are  a])t  to  lose 
sight  of  the  wide  gulf  between  the  proved  liomicide,  and  the 
necessity  of  proving  the  degree  of  it.  Wo  are  apt  to  take  it  for 
granted  that  such  a  homicide  as  this  apparently  was,  was  a  mur- 
der of  the  first  degree  ;  that  there  is  no  need  of  any  evidence  on 
the  question  of  degree,  and  that  the  jury  will  find  the  first  di'ifree 
if  they  find  homicide.  And  when  we  infer  tlie  degree  from  tlie 
sex  and  age  of  the  deceased,  and  the  peculiar  mutilation  of  her 
person,  we  are  apt  to  confound  the  duties  of  court,  counsel  and 
jury ;  to  j)resume  that  the  jury  must  draw  the  same  inference 
tliat  we  draw,  and  to  think  that  counsel  need  not  offer,  and  that 
the  court  may  safely  reject,  all  distinct  and  independent  evi- 
dence on  the  question  of  degree.  But  counsel  cannot  arjiue 
here,  and  the  court  cannot  hold,  that  as  matter  of  fact  the  jurv 
must  have  found  the  first  degree  from  the  evidence  of  sox,  aire 
and  mutilation.  That  is  a  question  with  which  we  hero  have 
nothing  to  do.  The  only  question  of  law  here  is,  whether  the 
evidence  objected  to  had  any  legal  tendency  to  prove  any  mate- 
rial fact. 

This  evidence  was  cumulative — that  is,  it  tended  to  prove  a 
fact  or  facts  which  other  evidence  also  ten<led  to  prove.  All 
evidence,  except  the  first  scintilla,  on  every  point,  is  cumulativt'; 
but  all  evidence,  except  the  first  scintilla,  is  not,  therefore, 
incom[)etent. 

If,  at  the  trial,  the  court  had  believed  that  this  evidciucc  was 
superlluous,  and  was  offered  in  bad  faith,  for  the  purpose  of  ])re- 
judieiiig  the  jury  impro])erly  on  some  other  points  tliiiii  those  oii 
which  it  was  offered,  or  that,  on  any  other  ground  within  tlie 
discretion  of  the  court,  it  ought  not  to  be  received,  the  court 
would  have  exercised  its  discretionary  power.  IJut  no  cause  for 
exercising  that  power  apjiears  here. 

Had  the  eviilence  a  legal  tendency  to  prove  any  fact  |)nt  iu 
issue  by  the  defendant's  plea?  One  fact  thus  put  in  issue  was 
his  killing  the  deceased.  Another  fact  thus  put  in  issue  was  his 
killing  her,  not  accidentally,  not  in  self-defense,  not  under  I'liy  of 
the  great  variety  of  circumstances,  or  for  any  of  the  numerous 
reasons  that  would  make  his  homicidal  act  manslaughter  or  nnu'- 
der  in  the  sec(»nd  degree,  but  in  the  commission  of  or  the 
attempt  to  conimit  a  rape,  or  under  any  other  circninstances.  or 
for  anv  other  reasons  that  would  make  his  homicidal  act  nuu'der 


STATE  V.  LAPAGE. 


517 


in  the  first  dcijrce.  Tho  stute,  iiskiiij^  a  conviction,  not  for  man- 
BJanulitLT,  or  murder  in  the  second  degree,  were  hound  to  satif^ty, 
not  the  court,  but  tho  jury,  not  only  that  tlio  liomicide  was  ooin- 
mitted  \>y  tiie  defendant,  but  also  that  the  homicide  was  murder 
of  the  first  degree;  and  of  this  the  state  was  bound  to  satisfy  the 
jury  heyond  all  reasonable  doubt.  The  court  could  not  instruct 
the  jury  that  they  were  bound  to  find,  upon  the  evidence 
received  without  objection,  that  the  homicide  was  murder  of 
tho  first  degree;  for  error  in  such  instructions  the  judgment 
would  he  reversed.  Without  the  evidence  objected  to  the  jury 
might  not  have  been  satisfied,  beyond  all  reasonable  doubt,  that 
the  decreased  did  not  die  suddeidy  of  heart  disease,  or  did  not 
commit  suicide,  or  was  not  accidentally  killed  by  a  carriage  run- 
ning over  her,  or  by  a  random  gun-shot.  In  either  case  the  dead 
body  might  have  i)een  found  and  mangled  by  some  person  who 
was  innocent  of  her  death.  The  defendant,  or  some  other  per- 
son, nn'ght  have  insulted  her,  or  committed  an  indecent  assault 
uiKiii  her;  and,  in  the  struggle  that  ensued  the  homicide  might 
have  Ix'cn  murder  in  the  second  degree,  or  voluntary  or  involun- 
tary manslaughter.  The  state,  being  bound  to  remove  from  the 
minds  of  the  jury  every  reasonable  doubt  on  these  and  all  other 
possii)le  points  involved  in  the  charge  of  murder  in  the  first 
degree,  had  a  right  to  introduce  evidence  on  those  jioints. 

Since  the  decision  in  Dadlng  v.  Wedinoreland,  52  N.  IL,  401, 
4U3,  405,  400,  it  cannot  be  necessary,  in  this  state,  to  argue  or  to 
cite  authorities  to  show  that  the  evidence  to  prove  several  inde- 
penilent  propositions  or  distinct  facts  may  be  of  different  kinds, 
iind  drawn  from  different  sources;  and  that  the  rule  requiring 
evidence  to  be  confined  to  tlie  point  in  issue,  excluding  evidence 
of  general  character  and  disposition,  and  j)rohil)iting  the  trial  of 
collateral  issues,  is  merely  the  ride  that  reipiires  evidence  to  be 
relevant,  and  excludes  what  is  irrelevant;  and  when  such  evi- 
dence is  admitted,  it  is  admitted,  not  because  it  is  evidence  of 
eliaracter  or  disposition,  or  of  such  other  transaction,  but  because 
the  character,  disposition,  or  transaction  is  relevant.  Character, 
dis|)()sition,  ami  certain  iniKKtent  or  crinnnal  acts,  not  being  the 
])riinary,  express  and  immediate  subject  of  the  issue,  may  be  rele- 
vant, that  is,  may  have  a  legal  tendency  to  ])rove  a  material  fact 
involved  in  the  issue.  And  they  may  be  irreh'vant.  And 
because  they  are  often  irreh'vaiit,  and  therefore  inadmissible  in 
evidence,  it  is  often  said  that  there  is  u  rule  ol'  law  that  excludes 


lit 


I 


'ill 


l\ 


5t» 


AMEKICAN  CUIMINAL  REPORTS. 


1  ■ 


evidence  of  other  criincs  tliaii  that  charged,  and  evideiiee  of  a 
general  disposition  to  commit  the  same  kind  of  offciiM'.  \\m 
the  books  abonnd  in  cases  that  show  there  neither  is  ikji'  cun  |,^ 
any  such  rule.  Wliat  is  often  errofieoiisly  called  a  rule  of  that 
kind  is  merely  the  application  to  a  particular  case  of  tlie  riilu 
requiring  evidence  to  he  relevant.  When  certain  evidence  tends 
to  prove  tlie  commission  of  another  crime  than  that  cliarixed,  or 
a  general  disposition  to  commit  such  or  any  <»ther  crime,  tlie  (-ir- 
cumstance  that  the  act  or  disposition,  which  the  evidence  tends 
directly  to  prove,  is  criminal,  is  wholly  immaterial.  The  (jues- 
tion  is  not  whether  it  is  criminal,  but  whether  it  is  relevnut— 
whether  it  has  a  legal  tendency  to  prove  a  fact  material  to  the 
issue. 

Although  evidence  oifered  in  support  of  an  indictment  for 
felony  he  proof  of  another  felony,  that  circumstance  does  not 
render  it  inadmissihle.  If  the  evidence  offered  tends  to  prove 
a  material  fact,  it  is  admissible,  altliough  it  may  also  tciKJ  to 
prove  the  commission  of  another  distinct  and  separate  olTcii>c: 
Mason  V.  The  Stutr,  42  Ala.,  532,  58";  /virkiroix/'.'^  (Wv'.  1 
Lewin  C.  C.  lOH  ;  Cotn.  v.  Steavfift,  10  Met.,  25G ;  A'>(/.  r.  A-^lon, 
2  Russ.  on  Cr.,  S+1,  4th  ed. ;  3  A/.,  2S(; ;  /i',(/.  v.  llVr/.v.  Lddi 
and  Caved  C.  18,  21. 

"  The  principle  is,  that  all  the  evidence  admitted  must  lie  per- 
tinent to  the  point  in  issue:  \f'  if  it  1>  ■  ])crtiiieiit  to  tins  point. 
and  tends  to  provi-  tlw  rime  ,iir  ired.  it  is  not  to  he  reiccic(i. 
though  it  also  ti  ,»i<»ve  the  c  ■mmissioii  of  otliei'  <M'i!iies,  or 

to  establish  c()l  ,i    facts:"      f      <.  i\  Chooti'.  1(»5  M:i.->.,  4.'")1. 

45S.  In  /Ay/,  v.  irJ.s.  .\  ■■••h.  Cr.  I'l.  ( I4tli  ed.).  4st;.  Lord  Dcii- 
maii  "could  not  conceive'  luw  tli(!  reli-vancv  of  the  fact  to  ch;ir:rt' 
could  lie  aifecttid  by  its  lieiiis;  tlii'  subject  of  anotiier  c!i;ii'i:i'."' 
Evidence  of  other  crimes  than  the  one  cliar^  •  is  so  freipicnfly 
receiveij  on  indictments  for  foi'gery  and  coiinti-rfeiring,  mid 
uttering  forged  or  counterfeit  piipers  or  coins,  that  those  (dasscs 
of  cases  are  sometimes  eironeously  spoken  of  us  exceptions  to 
the  general  rule  of  evidence.  'I'hey  are  \\<  exceptions.  Kvi- 
dence  is  received  in  all  cases  wlien  it  is  relevant  (unh-ss  it  is 
rejected,  on  some  ground  of  fact,  by  an  exercise  of  judicial  ilis- 
cretion)  withoul  reference  to  the  (piestion  whether  the  facts 
prov<'d  are  criminal  or  not.  Its  competency  consists,  not  in  the 
innocent  character  of  the  act  which  it  tends  to  prove,  but  in  the 
relevancy  of  that  act  to  the  issue.     Evidence  of  other  crimes  is 


STATE  V.  LAPAGE. 


519 


more  frequently  received  in  cases  of  forgery  and  counterfeiting 
than  in  other  cases,  not  because  those  cases  are  exceptional  in 
law,  but  because,  in  fact,  such  evidence  is  more  frequently  avail- 
able in  those  than  in  othcl*  cases  to  prove  a  material  fact.  It  is 
admitted  to  prove  the  guilty  knowledge,  the  motive,  or  the 
intent,  not  l>ecause  there  is  any  exception  or  special  rule  of  law 
applicable  to  proof  of  the  defendant's  knowledge,  motive,  or 
intent,  but  because  his  knowledge,  motive  or  intent  is  a  material 
fact  to  be  proved,  like  any  other  material  fact,  by  relevant 
evidence. 

The  general  rule  of  evidence  that  requires  evidence  to  be  rele- 
vant admits  evidence  that  is  relevant,  and  it  is  as  applicable  to 
murder  as  to  pas<sing  counterfeit  money. 

In  Bex  V.  Voke,  R.  and  R.,  531,  it  was  held  by  all  the  judges, 
on  the  charge  of  shooting  with  intent  to  kill,  that  proof  of 
shooting  at  the  same  jierson  at  another  time  was  competent  to 
8h()W  tliat  the  shooting  charged  was  not  accidental.  In  lieg.  v. 
Geeriixj,  18  Law  Journal  Mag.,  cas.  215,  the  charge  was  against 
a  wife  for  the  murder  of  her  husband  by  poison.  Evidence  of 
three  of  lier  sons  IxMug  subsequently  poisoned  was  received,  to 
show  that  her  husband  died  of  poison,  and  that  his  death  was 
not  accidental.  In  A'^r/.  v.  Cotton,  12  Cox  C.  C,  400,  the  charge 
was  against  a  mother  for  murdering  her  child  by  poison.  Evi- 
dence was  held  admissible  to  prove  that  two  other  children  of 
hers,  and  a  lodger  in  the  house,  had  previously  died  of  poison. 
In  Reg.  v.  Gamer  and  Wife,  3  F.  and  F.,  OS  I,  the  charge  was 
the  murder  of  Gartier's  mother  by  poison.  His  wife  had  lived 
in  his  family  as  a  servant  when  his  former  wife  died.  His 
mother  died  of  poison.  Evidence  was  received  to  show  that  his 
first  wife  died  of  poison,  and  to  show  tlic!  circumstiinces  of  her 
death.  In  lieg.  v.  Boiler,  12  Cox  (1  C,  »;3(».  on  the  trial  of  the 
defendant  for  murdering  her  infant  by  sutfocution  in  bed,  evi- 
dence was  received  tending  to  show  the  previous  deatlis  of  her 
otlier  children  at  early  ages.  In  Be.v  v.  C'leives,  4  C.  and  P.,  221. 
on  a  charge  of  murdering  II.,  evidence  was  rec^eived  to  show  that 
H.  had  i)een  employed  by  the  defendant  to  murder  P.  In  State 
V.  Watl'in.'i,  9  Conn.,  47,  on  a  charge  of  murdering  the  defend- 
ant's wife,  evidence  was  received  to  show  the  defendant  in  adul- 
terous intercourse  with  another  woman  for  some  months  before 
his  wife's  death  :  Johnson  v.  State.  17  Ala.,  618 ;  llall  v.  States 
40  Ala.,  698 ;  People  v.  Stoiit,  4  Parker  Cr.,  71.    In  Cmn.  v. 


PI  J  -, 


p  i  1 

t>«sJ 

ih 


'¥ 
H 


'f 


620 


AMEIIICAN  CRIMINAL  REPORTS. 


Ferrigan^  44  Pa.,  38(5,  in  a  trial  of  murder,  evidence  was  received 
to  show  ati  adulterous  intercourse  between  the  defendant  and  the 
wife  of  tlie  deceased. 

And  the  general  rule  applies  to  the  killing  of  horses  as  well 
as  to  murder.  In  Rex  v.  M(kj(j,  4  C.  and  P.,  304,  on  a  cliarce 
of  administering  sulpluiric  acid  to  eight  horses  witli  intent  to 
kill  them,  evidence  of  the  defendant's  administering  it  at  diller- 
ent  times  was  received  to  sliow  liis  intent.  And  the  same  doc- 
trine is  held  in  all  other  classes  of  cases,  as  well  as  those  relatin*^ 
to  the  destruction  of  life.  In  Jicg.  v.  Dassett,  2  C.  and  K.,  :W)^ 
on  a  charge  of  setting  lire  to  a  rick  by  tiring  a  gun  close  to  it  on 
the  twenty-ninth  of  March,  evi<lence  that  the  rick  was  also  on 
lire  on  the  twenty-eiglith  of  Alarch,  and  that  the  prisoner  was 
then  close  to  it,  liaving  a  gun  in  his  hand,  was  received  to  show 
that  the  lire  on  the  twenty-ninth  was  not  accidental.  On  the 
question  of  accident,  the  evidence  would  have  been  relevant  if  it 
had  related  to  another  rick  belonging  to  another  person.  On  a 
charge  of  setting  tire  to  the  defendant's  house,  with  intent  to 
defraud  an  insurance  company,  evidence  that  the  defendant  had 
insure(l  in  other  otlices  two  other  houses  in  which  lie  had  lived 
that  were  burned,  and  that  he  received  the  insurance  money  from 
the  other  companies,  is  relevant  as  tending  to  show  that  the  tire 
in  question  was  intended,  and  not  accidental:  AVy.  v.  (r/'ciy, 
4  F.  and  P.,  1102. 

The  ([uestion  of  accidental  death  in  the  present  case  was  one 
upon  which  the  state  was  bound  to  satisfy  tlie  jury  beyond  all 
reasonable  doubt,  and  therefore  one  on  which  the  state  had  a 
right  to  introduce  evidence.  Mere  proof  that  the  defendant 
killed  the  deceased  would  be  perfectly  consistent  with  nnirder  in 
the  second  degree,  or  manslaughter,  or  the  defendant's  entire 
innocence.  He  might  have  killed  her  in  self-defense,  or  acci- 
dentally, and  without  faidt  on  his  part.  The  state,  asking  fur  a 
conviction  of  murder  iii  the  lirst  degree,  was  bound  to  prove 
beyond  all  reasonable  doubt  not  oidy  that  he  killed  her,  but  also 
that  the  homicide  was  "murder  comnutted  by  pt)ison,  starving, 
torture,  or  other  delil)erate  and  premeditated  killing,  or  com- 
mitted in  |)erpetrating  or  attempting  to  perpetrate  arson,  ra|)e, 
robbery  or  luii'glary." 

Under  an  indictment  for  arson,  evidence  of  two  ])revi<)us  and 
abortive  attempts  to  set  tire  to  the  same  premises,  though  there 
was  no  evidence  that  they  were  made  by  the  defendant,  was 


wm 


STATE  V.  LAPAGE. 


521 


)  Avas  received 
iidaiit  and  tlie 

lorses  as  well 

on  a  cliai'ge 

nth  intent  lo 

g  it  at  (Hirer- 

he  same  doc- 

;li<)se  reiatiiitf 

and  K.,  ;j(it;^ 

cdu.se  to  it  on 

i  was  also  on 

prisoner  wns 

eived  to  slmw 

iital.     On  the 

rcdevant  if  it' 

erson.     On  a 

I'ith  intent  to 

efendant  hud 

he  liad  lived 

e  in«)ney  frnm 

X  that  the  tire 

(ic(/.  V.  (rfay, 

case  was  one 
ry  beyond  all 
3  state  had  a 
he  def'eiidiint 
ith  nuirder  in 
idant's  entire 
ense,  or  aeci- 
,  askiiiir  t'or  a 
lunl  to  prove 

her,  hnt  also 
son,  starving, 
lin.U",  or  coni- 
i  arson,  rape, 

])reviou8  and 
thouifli  there 
ifoiidant,  Wiis 


admitted  to  show  that  the  last  lire  was  not  accidental :     7^^.  v. 
Bailey,  2  Cox  C.  C,  311,     In  lieg.  v.  Proud,  Leii-h  and  Cave 
C.  C,  97,  101,  the  charge  was  embezzlement  l)y  the  defendant  as 
clerk,  who  made  false  entries  in  his  book  of  the  amounts  by  him 
received.     It  was  held  (by  Pollock,  Wio'litman,  Williams,  Mar- 
tin and  Channell)  that  the  book  was  evidence  i^enerally,  that  not 
only  the  false  entries  bearinj^  directly  n})on  the  three  charges  in 
the  indictment,  !)nt  also  other  similar  false  entries,  were  compe- 
tent evidence.     Rey.  v.  lik'hunlmn,  2  F.  and  F.,  3i3,  was  a 
charge  of  embezzlement  against  a  clerk  who  made  out  weekly 
accounts  of  liis  payments.     On  three  occasions  within  six  months 
he  entered  tlie  payments  convctly,  but,  in  adding  them  up,  nnide 
the  totals  £2  greater  than  tliey  were,  and  took  credit  for  the 
larjrer  amounts.     These  were  the  cases  on  which  the  indictment 
was  founded.     Evidence  that,  on  a  series  of  occasions  before  and 
afterwards,  precisely  similar  errors  had  been  made  and  advantage 
taken  of  l)y  him,  was  received  to  show  that  the  errors  in  the 
three  instances  to  which  the  indictments  related  were  intentional 
and  frau<lulent,  and  not  accidental.      Coin.  v.  Tackerman,  10 
(iray,  173,  2U(),  was  a  charge  of  embezzlement.     The  court  say  : 
"  Where  the  intent  of  the  accused  party  forms  any  ])art  of  tlie 
matter  in  issue,  evidence  may  always  be  given  of  other  acts  not 
in  issue,  provided  they  tend  to  establish  the  intent  imputed  to 
him  in  committing  the  act."     Com.  v.  Shepherd,  1  Allen,  575, 
5S1,  was  another  case  of  embezzlement.     It  was  held  that  evi- 
dence of  another  act  of  embezzlement  by  the  defendant,  during 
the  same  week,  was  cotnpetent  on  the  question  of  intent.     In 
Com.   V.   Easinum,    1   Gush.,    ISO,   210,   the  defendants   were 
indicted  for  obtaining  goods  of  certain  persons  by  false  pretenses. 
Evidence  of  the  purchase  of  other  goods  from  other  ]>ersons  Wiis 
held  ('om])etent  on  the  (piestion  of  criminal  intent.     /iVv/.  t\  Roe- 
buck,  Dearsly  and  Bell  C.  C,  24,  was  another  case  of  false  pre- 
tenses.    The  false   pretense  was  that  a  chain.  ))ledged  by  the 
defendant   to   a   ])awnbroker,    was   silver.      Evidence   that   the 
defendant  a  few  days  afterwards  offered  a  similar  chain  to  anotlier 
pawnbroker,  was  held  admissible. 

Ji*ex  n.  WinkuHU'th,  4  C.  and  P.,  444,  was  a  charge  of  robbiM-y. 
The  prosecutin*  was  induced  by  the  defendant's  advice  to  give 
money  to  a  mob  who  catne  to  Ids  house,  to  got  rid  of  them  and 
prevent  mischief.  To  show  that  the  advice  was  fraudulent,  and 
a  mere  mode  of  robbing  the  prosecutor,  evidence  was  received  to 


I 


i     ' 

■1 

t 

¥, 

1 

1         1 

m 

1    "    " 

|\*, 

1           1 

1 

! 

i\t 

■ 

'ff 

u 


I 


522 


AMERICAN  CRIMINAL  REPORTS. 


show  that  the  same  mob  had  demanded  money  at  other  houses 
when  some  of  the  defendants  were  present.  Defrene  et  al.  v. 
The  State,  3  Ileisk.,  53,  62,  was  another  in(lictinent  for  robbery. 
Verdict,  f^uilty  of  larceny  of  the  prosecntor's  watch,  which  was 
obtained  l>y  the  dcl'endaiit  under  the  pretense  of  a  bet.  Evi- 
dence was  lield  conipotent  to  show  that  the  (ksfciidant  had 
attempted  to  jiractice  tlie  same  artifice  on  otlier  ])crsoiis  and  on 
tttLar  occasions.  The  court  say  (p.  63)  :  "  As  a  general  ])ropoRi- 
tion  of  law.  it  is  undoubtedly  true  that  no  distiiict  and  substan- 
tive crime  can  be  sliown  upon  tlie  trial.  But  this  rule  is  better 
understood  as  it  is  given  in  the  text-books,  that  tlie  facts  proven 
should  be  strictly  relevant  to  the  particular  charge."  U])on  the 
question  whether  the  purchase  of  property  from  one  person  was 
fraudulent,  evidence  is  admissible  to  show  that  the  purchaser 
fraudulently  bought  other  property  of  other  persons:  Bradley 
r.  Ohear,  10  N.  H.,  477,  480;  II<we>f  v.  Gnmt,  52  N.  II.,  509. 
And  the  same  rule  admits  evidence  of  one  fraudulent  transaction 
to  show  a  fraudulent  intent  in  an(»tlicr  transaction,  in  criniitiiil  iw 
well  its  in  civil  cases :  State  v.  Johihson,  33  N.  11.,  441.  456,  457. 
lieg.  V.  Bliasdale^  2  C.  and  K.,  T<'>5,  was  a  charge  of  stealing 
coaL  The  defendant  was  lessee  of  a  coal  mine,  and  from  the 
shaft  of  the  leased  mine  he  had  wrongfully  cut  into  the  adjoin- 
ing premises,  and  taken  coal  during  a  piM-iod  of  more  than  four 
years  from  the  coal  fields  of  thirty  or  forty  ditlcrciit  owners. 
.Ml  this  was  held  competent  on  the  question  of  felonious  intent 
in  taking  the  coal  of  one  person. 

In  an  admirable  brief  of  Attorney-(4eneral  Train's,  of  Mass., 
in  Com.  V.  Mt'Varthi/.  I']sse,\.  N*)vember,  1875  (to  whicOi  1  am 
jinich  indebted,  and  which  I  send  to  the  chief  justice),  a  few 
>imilar  autliorities  are  cited  on  evidence  of  guilty  knowledge  in 
receiving  stolen  goods,  passing  counterfeit  coin,  and  uttering 
forged  notes.  The  application  of  the  rule  in  such  cases  is  too 
common  and  familiar,  and  the  authorities  are  too  numerous,  to 
justify  counsel  in  dwelling  at  h^ngth  on  this  i)ranch  of  the  sul)- 
ject.  In  AV,/!  v.  Bath,  1  Moody  C.  (;.,  470  (S.  C,  7  C.  and  P., 
429),  on  a  trial  for  forging  and  uttering  a  note  of  the  kingdom 
of  Poland,  on  Septend)er  1,  1S35,  evidence  was  nHteived  to  show 
that  the  defendant,  on  August  24,  1835,  agreed  to  forge  a  thousand 
Austrian  notes,  and  that  in  yej)tend)er,  1834,  ho  had  ])late8  for 
printing  Polish  notes  different  from  that  winch  was  the  subject 
of  the  indictment,  and  caused  live  hundred  notes  to  be  printed 


STATE  V.  LAPAGB. 


523 


other  honsea 
^rem  et  al. «. 
for  robbery. 
ii,  wliich  was 
a  bet.  Evi- 
fViidiuit  had 
Tf^oiis  and  on 
loral  )>iopoRi- 
iiiid  substan- 
rnlc  is  better 
facts  proven 
'  U])on  the 
e  person  was 
le  purchaser 
5 :     Bradley 

I  N.  II.,  509. 
it  tratisaction 

II  criminal  as 

41, 4r)0, 4r)7. 

s  of  steal i III; 
11(1  from  tlie 
(»  the  adjuiii- 
»re  than  fuur 
rent  owners, 
onions  intent 

n's,  of  Mass., 
whi(di  1  am 
stiee).  a  few 
knowledge  in 
and  iitterini; 
I  cases  is  too 
nnnierons,  to 
li  of  the  suit- 
7  V.  and  P., 
tlie  kiiiifdoiii 
ived  to  show 
u;e  a  thousand 
(id  jihiti'S  for 
IB  the  subject 
to  bo  printed 


from  those  plates.  The  case  was  reserved,  and  the  judijes  held 
the  evidence  was  adinissil)le.  Such  evidence  is  competent, 
whether  the  possession  or  utterance  tte  prior  or  snb.se(iuent,  and 
whether  the  false  documents,  notes,  or  monev.  be  of  the  same  or 
a  dilTerent  description:  /Av/.  r.  I''(isf,-i\  Dcarsly  ('.  ('.,  4r)(>; 
R,'(j.  V.  Sl.^h!ff,  0  (;ox  ('.  ('.,  ;;2t» :  /,'<y.  v.  Su/t,  ;i  F.  and  v.,  SU; 
Cain.  r.  Prii'<\  10  (iray.  472. 

Citin.  V.   /'M(/t'r/i/,  10  Allen,  l.'U.  18»i.    187,  was  a  cliari;e  of 
havini;  a  counterfeit  l)aid<  bill   with  intent  to  pass  it.     It  was 
hold  that  evidence  was  admissible  to  show  that  the  defendant 
had  and  passed  a  different  kind  of  counterfeit  money  at  various 
times  and  places  ;  and  that  he  had  made  to  a  witness  statements 
which  amounted  to  an  admission  that  he  was  a  dealer  in  counter- 
feit money.     "  It  cannot  be   doubted,"  say  the  court,  "  that  a 
direct  statement  by  the  defendant,  made  previous  to  the  transac- 
tion  which  forms  the  subject  of  the  indictment,  that  he  was 
accustomed  to  buy  and  sell  counterfeit  money,"  would  be  adniia- 
sible.     The  fact  of  his  beini;  a  professional  counterfeiter,  or  a 
common  dealer  in  counterfeit  money,  w^as  relevant  to  the  par- 
ticular charge  of  knowin<>-ly  havinir  a  counterfeit  bill  with  intent 
to  pass  it ;  and  bein^'  relevant,  it  could  be  proved  by  other  evi- 
dence as  well  as  by  his  own  statements. 

On  a  trial   for  burglary,  it  is  no  valid  objection  to  evidence, 
tendiiii;  to  show  the   burglarious   intent  of  the  defendant's  act, 
tliiit  it  proves  another  and  distinct  oll'ense ;  but  the  intent  with 
which  he  entered  may  be  shown  by  pi'uof  of  a  felony  committed 
ill  an  adjoininu:  store:     Oshnriw  u.  /*i'i>j>h\  2  I'arker  ('.  R..  583; 
rhlllilis  ,\  l\'oplt\  :u  I'.arb..  WW^.     In  M.i.^oii   r.  '11,.'  State,  42 
Ala..  ri;'.2,  y.\\\  evidence  was  held   ailmissible  to  show  that  the 
|»riM)iU'i>    hail    committed   other   bui\;j;laries   than   that   chai'ijctl. 
The  court  say  :     "  The  evidence  tended  to  show  that  there  was  a 
privity  and  community  of  d(!sii:;n  between  the  prisoners  to  commit 
olh'iiscs  of  tln>  character  char.ij,'eil  ai:;ainst  tluMii."    "  I'rivity  and 
cuMiuuiiiity  of  desiifii  "  is  a  lar<j;er  phrase  than '' intent,"  but  it 
means  the  same  liiiiii;-.     To  show  their  intent,  written  articles  t)f 
ai,'ri'ement,  signed  by  the  defendants,  settini"-  forth  their  intent 
of  j:;oinif  into  the  buri;lary  business,  would  be  (Competent;  and  it 
would  not  be  necessary  that  their  aijreemeiit  be  reduced  to  writ- 
in}j.     Their  oral  statements  would   be  ecpially  competent,  as  in 
the  cas(!  of  the  dealer  in  counterfeit   money.     And  the  intent 
may  be  proved  by  other  burj^laries.  as  well  as  by  written  or  oral 


fA  m 


'p. 

h 

t 

*' 


524 


AMERICAN  CRIMINAL  REPORTS. 


Statements ;  by  acts,  as  well  as  by  words  written  or  spoken ;  by 
the  executed,  as  well  as  by  the  executory  agreement.  And  in 
the  case  of  a  siiii^le  defendant,  his  intent  may  be  shown  liv  the 
same  kind  of  evidence  that  would  be  admissible  against  several 
joint  defendants,  as  in  the  case  of  the  dealer  in  counterfeit 
money.  Evidence  that  a  jnan  has  often  passed  counterfeit 
money  has  a  legal  tendency  to  show  that  he  intends  to  pass  more 
of  the  same  kind  of  money  found  in  his  possession.  The  lunn- 
ber  of  his  previous  attempts  to  ])ass  such  money  allects  the 
weight,  not  the  competency,  of  this  kind  of  evidence.  80,  when 
A  has  broken  and  entered  B's  house,  and  the  question  is  wlietlier 
he  broke  and  entered  it  with  a  burglarious  intent,  evidence  of  hlg 
having  repeatedly  broken  and  entered  other  liouses  for  the  ))ur- 
pose  of  stealing  tends  to  show  the  intent  with  which  he  broke 
and  entered  IVs  house. 

In  to7/i,.  V.  TiD'ner  &  Shearer,  3  Met.,  19,  24,  2.5,  this  general 
rule  of  evidence  was  applied  to  a  case  of  kidnaping.  The 
indictment  was  for  kidnaping  a  negro  boy,  Sidney,  witii  inrent 
to  send  him  out  of  the  state.  There  was  evidence  tendiiin'  to 
prove  that  the  defendants  got  Sidney  into  their  possessinn  in 
Worcester,  by  the  false  representations  of  both  the  delendnnts 
to  his  father  that  Shearer  resided  in  I'almer  and  kept  a  store 
there,  and  that  Sidney  was  wanted  by  Shearer  to  assist  him  in 
that  store.  Sidney  was  sent  to  Virginia.  Evidence  was  received 
to  show  that,  the  day  Ijefore  they  got  Sidney,  Turner  endeavored 
to  get  another  negro  boy  from  the  almshouse  in  Shirley,  upon 
a  representation  that  the  boy  was  wanted  by  Turner's  latlier  to 
live  with  him  in  Palmer.  This  evidence  was  held  competent. 
Tlie  court  say :  "  Evidence  of  other  facts  than  those  conni'cted 
immediately  with  tiu;  act  are  always  admissible,  when  the  iiit<  nt 
of  the  defendant  forms  a  matei-ial  part  of  the  issue,  and  when 
those  facts  can  be  8U])posed  to  have  any  proper  tendency  to 
establish  that  intent.  Lip(»n  nM-urring  to  the  indictment  and  the 
proceedings  had  thereon  upon  the  ti'ial,  it  will  be  seen  that  the 
intent  with  which  the  defendant  did  the  act  complained  of 
became  material,  and  was,  in  fa(!t,  a  «pu\stion  directly  submitted 
to  the  jury  to  pass  upon.  The  intent  and  purpose  of  the  (lef(>iid- 
ant  in  obtaining  t\w  possession  and  custody  of  the  individual 
alleged  to  be  unlawfully  taken,  were  to  be  infei-red  from  a  great 
variety  of  circumstances,  and  ne(!essarily  opened  a  wide;  door  for 
the  introduction  of  evideiuie  of  the  acts  of  the  party  aecu>ed, 


STATE  V.  LAP  AGE. 


sm 


having  any  reasonable  deforce  of  connection  with  the  particular 
act  complained  of.  It  was  with  the  view  of  fixing  the  character 
of  this  hist  act,  that  evidence  was  received  of  the  conduct  and 
declarations  of  the  defendant  on  the  day  previous  and  at  another 
place,  and  in  reference  to  another  individual  al)()ut  whom  over- 
tures were  made  with  a  view  of  obtaining  possession  of  his  per- 
son. With  reference  to  such  a  purpose,  and  thus  limited,  it 
seems  to  us  to  have  been  properly  admitted."  On  a  charge  of 
keeping  liquor  for  sale,  evidence  tliat  the  defendant  had  previ- 
ously sold  other  li(pior,  or  kept  other  liquor  for  sale,  or  was  a 
liquor  dealer,  is  adinissible  on  the  question  of  intent :  State  v. 
Flimh'tt,  64:  Me.,  534 ;  Com.  v.  Stochr,  109  Mass.,  3G5 ;  Com.  v. 
Dou'horn,  109  Mass.,  308. 

A  person's  character  for  chastity,  when  it  is  relevant,  is  not 
sliiclded  from  impiiry.  It  is  a  disagreeable  subject  of  investiga- 
tion, but  the  law  makes  no  discrimination  between  subjects  that 
are  agreeable  and  those  that  are  disagreeable:  Wood  v.  GaU,  10 
N.  II.,  24:7.  Sexual  crimes  arc  not  excepted,  as  a  peculiar  class, 
from  the  operation  of  the  general  rule  that  admits  relevant  evi- 
dence. On  an  indictment  for  adultery,  evidence  of  previous 
improper  familiarities  is  competent:  State  v.  Wallace,  9  N.  II., 
515;  State  v.  Marcin,  35  N.  II.,  22;  Com.  v.  Merriam,  U 
Pick.,  518;  Com.  v.  Laliei/.  U  Gray,  91.  In  Com.,  v.  Ilorton, 
2  Gray,  351,  and  Com.  v.  Tlnuuhr.,  11  Gray,  450,  it  was  held 
that,  altiumgh  improper  familiarities  were  competent,  proof  of 
actual  adultery  (other  than  that  charged)  committed  by  the  same 
parties  with  each  other  was  incompetent:  but  in  Thaijer  v. 
Thaijery  101  Mass.,  Ill,  113,  114,  the  absurdity  of  that  distinc- 
tion was  acknowledged,  and  the  two  cases  whieli  established  it 
were  overruled.  The  court  say :  "  When  adulterous  disposition 
is  shown  to  exist  between  the  parties  at  the  time  of  the  alleged 
act,  then  mere  opportunity,  with  comparatively  slight  circum- 
gtances  showing  guilt,  will  be  sutKcient  to  justify  the  inference 
that  crimiiud  intercourse  iuis  actually  taken  place.  The  intent 
and  disposition  of  the  parties  towards  each  other  must  give  char- 
acter to  their  relations,  and  can  only  be  ascertained,  iia  all  nu)ral 
qualities  are.  U'uwx  the  acts  and  declarations  of  the  parties.  It  is 
true  that  the  fact  to  be  proved  is  tlu'  existence  of  a  criminal  dis- 
position at  the  time  of  the  act  cliargecl  ;  bnt  the  indications  by 
which  it  is  proved  may  extiiiul,  and  ni-iliiiarily  do  extend  over  a 
period  of  time  both  anterior  and  sul)si'i|ueiit  to  it.     The  rules 


I  I 


i 

"'  it  \ 


i  ?^ 


.yf- 


526 


AMERICAN  CRIMINAL  REPORTS. 


which  govern  human  conduct,  and  which  iire  known  to  (.'oinmon 
observation  and  experience,  are  to  be  a])])lied  in  these  (rases  us  in 
all  other  investigations  ot  fact,  *  *  *  ]jy  the  applica- 
tion of  the  rule  laid  down  in  these  cjises  {Com.  v.  llortoii  and 
Com.  V.  Thrasher),  evidence  tending  to  establish  an  independent 
crime  is  to  be  rejected,  although  all  acts  which  are  only  acts  of 
improper  familiarity  are  to  be  admitted  in  ])roof.  There  is  no 
sound  distinction  to  be  thus  drawn.  There  is  no  ditTercnce 
between  acts  of  fainiliaritv  and  actual  adultery  committed,  when 
offered  for  the  pnrpose  indicated,  except  in  the  additional  weiifht 
and  significance  of  the  latter  fact.  The  Cimcnrrent  adulterous 
disposition  of  the  defendant  and  the  jMir(ict'j>n  cri/iiai  is  vannot 
be  shown  by  stronger  evidence  than  the  criminal  act  itsi'lf." 

A  "  concurrent  adulterous  disposition  "  in  both  parties  is  not 
necessary  to  be  proved  in  a  case  of  rape.  Wlllidins  v.  The  S.taU, 
8  Humph.,  585,  was  an  indictment  for  an  assault  with  intent  to 
commit  a  rape  upon  the  defendant's  daughter.  Evidence  was 
received  showing  his  previous  attempts  to  have  sexual  inter- 
course with  her.  And  this  was  held  competent  to  show  the 
intent  with  which  the  assault  charged  in  the  indietnieiil  was 
committed.  The  same  doctrine  prevails  in  this  state.  Kven 
•ludge  Bellows,  who  is  understood  to  have  enti^rtained  extreme 
opinions  adverse  to  collateral  issues,  was  not  aware  of  any  reason 
that  would  justify  the  court  in  departing  from  the  principle  of 
our  own  decisions  :     State  v.  Knapp.,  45  N.  II.,  148,  15G,  157. 

Suppose  the  defendant  were  tried  for  breaking  and  entering 
the  store  at  the  north  end  of  Elm  street  in  Manehester — the  most 
northern  of  all  the  stores  on  that  street — witli  intent  to  steal: 
suppose  it  were  proved  that  he  broke  and  entered  that  store; 
that  he  was  arrested  as  so(tn  as  he  entered  it,  and  the  only  ques- 
tion were  whether  he  intended  to  steal ;  suppose  there  were  one 
hundred  otlu^r  stores  on  that  street,  and  lie  had  broken  and 
entered  every  one  of  theui,  and  stolen  soiuetliiiig  in  every  one  of 
them,  beginning  at  the  south  end  of  the  stri'et  and  taking  the 
stores  in  succession,  on  his  burglarious  march  from  one  end  of 
the  street  to  the  other:  supp(»se  lu;  did  all  this  in  oik;  night,  and 
was  completing  his  night's  work  when  arrestee  1 :  on  the  (piestion 
of  his  intent  in  entering  the  one  hundred  and  iirst  store,  would 
anybody  thiidc  of  objecting  to  evidence  of  liis  one  hundred  lar- 
cenies in  the  other  one  liundred  stores  if  His  r(d)l)ing  one  hun- 
dred stores  would  tend  to  show  tiiat  ho  intended  to  rob  the  one 


STATE  V.  LAPAGE. 


527 


to  common 
ic  (Niscs  iis  in 
'  f'H'  iippliea- 

lloi'toii  and 

indc'jH'iident 
only  acts  of 
Tliere  is  no 
lo  (lilForonce 
nittcfi,  when 

tiollill  Wl'ijrlit 

it  adulterous 
n  hi  In  cannot 
:  itself." 
wrties  is  not 
V.  T  Ik  State, 
itli  intent  to 
Ividetiee  was 
KC'Xuai   inter- 
to  siiow  the 
ictiiieiil  was 
Ktiite.     Kven 
iit-'d  extreme 
»f  iiuy  reason 
priMcipio  of 
,  156,  157. 
ind  entering 
iv — tlic  most 
iwi  to  steal: 
I   that  store; 
ic  ordy  fjue.s- 
'I'e  were  one 
l)i'(d<eri  and 
uverv  OIK!  of 
I  takitii;  the 
one  end  of 
<-'  iii^dit.  and 
tlu!  (jnestion 
^tore.  Would 
mndred  hir- 
n^  one  hini- 
rob  the  one 


hundred  and  first,  jnst  as  his  passing  counterfeit  money  in  the 
one  hundred  would  tend  to  show  that  he  intended  to  pass  coun- 
terfeit money  found  in  his  possession  in  the  one  hun(h-ed  and 
first.     There  would  be  no  difference  between  his  presence  in  the 
one  hundred  and  first  store,  and  his  having  counterfeit  money  in 
his  pocket  in  that  store,  that  would,  on  the  question  of  intent, 
affect  the  admissibility  of  tlie  evidence  of  what  he  had  done  in 
the  other  hundred  stores.     Suppose,  instead  of  robbing  stores,  he 
had  robbed  persons,  going  from  one  end  of  the  street  to  the 
other,  and  knocking  di»wn  and  roljbing  one  hundred  men.  one 
after  the  other,  and  not  touching  a  single  woman  :  suppose,  wlien 
he  had  knocked  down  the  one  hundred  and  first  man,  and  before 
he  had  had  time  to  rob  him,  he  had  been  arrested,  and  the  ques- 
tion were  whether  he   intended  to  rob  him — whether  his  last 
offense  were  an  attempt  to  rob,  or  a  mere  assault,  or  an  assault 
with  intent  to  kill — would    anybody  suppose   his  robbing  the 
other  hundred  men,  after  he  knocked  them  down,  was  no  evidence 
of  the  intent  with  which  he  knocked  down  nund>er  one  hundred 
and  one  ?     Sui)pose  the  one  hundred  and  one  j)ersons  whom  he 
assaulted  were  women  :  sup])ose  he  touelied  no  man  :  suppose  he 
had  unsuccessfully  attempted   to  ravish  one  hundred  of  them, 
and  were  arrested  at  the  instant  of  his  knocking  down  the  one 
hundred  and  first,  and  the  (piestioti  were  whether  his  last  assault 
were  a  mere  assault,  or  an  assault  with  intent  to  commit  a  rob- 
bery, or  an  assault  with  intent  to  commit  a  rape :   6U])pose  the 
last  woman  assaulted  shoidd  die  of  lier  injuries,  and  the  defend- 
ant were  indicted  for  her  murder:  and  suppose  it  were  neces- 
sary (as  some  judges  in  this  state,  as  well  as  elsewhere,  have 
thought  it  to  \)Q—State  v.  P'dw  4i>  N.  II.,  399,  40J-,  405,  406)  to 
allc'c  in  the  indictment  the  oiTense  which  the  defendant  was 
attempting  to  commit  when  he  struck  the  blow  that  unexpect- 
edly prt)ved  to  l)e  fatal :  woidtl  your  honors,  if  it  were  your  duty 
to  draw  the  indictment,  tliiidv  it  necessary  to  allege  any  other 
attempt  than  an  attem])t  to  commit  a  rape?     Would  you  think 
it  necessary  to  allege  an  attempt  to  commit  a  robbery?     And 
how  woidd  you  isxjiect,  if  you  were  the  prosecuting  olKcers,  to 
find   any    better   evidence   of   the  defendant's  intent  than   his 
attenqits  upon  the  other  one  hundred  women?     It  was  as  neces- 
sary for  the  state  to  prove  the  defendant's  intent  to  commit  a 
rape  in  this  case  as  if  it  had  been  necessary  to  allege  such  intent 
in  the  indictment. 


1WJ: 


i 


■??r^ 


™ 


fi       t- 


m 


1 


il'l 


m 


vim 


528 


AMERICAN  CRIMINAL  REPORTS. 


If  the  defendiuit  were  indicted  for  kidnaping,  or  attempting 
to  kidnap,  a  negro  boy  (before  tlie  adoption  of  the  tliirtoenth 
amendment),  would  anybody  think  it  doubtful  whether,  on  tlie 
qnestion  of  intent,  other  attempts  of  the  defendant  to  get  other 
negro  boys  into  his  possession  for  a  slaveholding  purpo.se  would 
be  competent  evidence  ?  And,  wlien  the  intent  is  the  tliinf  to 
be  proved,  what  difference  is  there  that  affects  the  adniissihilitv 
of  evidence  of  other  similar  acts,  whether  the  defendant  gets  a 
negro  boy  into  his  possession,  with  intent  to  send  him  into 
slavery,  or  whether  lie  gets  a  girl  into  liis  possession,  or  makes  an 
a.-:sanlt  upon  lier  with  intent  to  commit  a  rape  ?  The  proved  intent 
with  which  he  takes  })ossessiun  of  the  person  of  one  boy  or  one 
girl,  tends  to  show  the  intent  with  which  he  takes  possession  of  the 
person  of  another  boy  or  another  girl.  In  C07/1.  v.  Turner,  evi- 
dence that  the  defendant  attempte<l  to  get  possession  of  a  iictrro 
boy  in  Shirley,  under  false  pretenses,  tended  to  show  his  iiitoiit 
to  send  that  boy  into  slavery  ;  and  evidence  of  that  intent  in  that 
case  tended  so  show  a  similar  intent  in  the  other  case  in  which 
he  was  indicted,  ft  was  precisely  as  if  he  had  sent  one  huiidml 
boys  from  Massachusetts  into  slavery.  The  number  of  instances 
would  affect  the  weight  of  the  evidence,  but  not  its  admissiliility. 
His  sending  one  or  more  into  slavery  from  Shirley,  or  gcttinL' 
possession,  or  attempting  to  get  possession,  of  one  or  nun'c!  in 
Shirley  for  that  purpose,  would  he  evidence  of  Uw  pur|)()se 
for  which  he  got  possession  of  Sidney  in  Worcester,  just  as  hi^ 
passing  ('ount(;rl'eit  mi>ney  on  one  occasion  would  he  cvidciicc 
of  his  intent  to  i)ass  other  counterfeit  money  found  in  his  |i(i>sc,<- 
sion  on  another  occasion.  What  legal  distinction  is  there  between 
proof  of  the  intent  with  which  tlu;  boy  Sidney  was  caiiturcd  in 
Worcester,  and  proof  of  the  intent  with  which  .Io>if  Lungiuaid 
was  caj)tured  in  I'end)roke?  Why  shouhl  sexual  criniL's,  air^ni- 
vated  to  the  jiitch  of  butchery,  be  so  higiily  favored  t)y  the  hiw 
as  to  be  licensed  and  exempted  fi'um  punishment  by  a  special 
and  peculiar  dispensation  suspending  a  general  rule  of  evidence? 

The  exclusion  of  evidence  on  a('ct)unt  of  its  remoteness  in 
point  of  time  or  place  is  the  exercise  of  the  discretionary  imwer 
of  the  court,  passing  upon  tlu;  (|nestion  as  one  of  i'act  and  not 
of  law:  Palmer  V.  ('onron/,  4S  X.  II.,  till,  lill>;  JhifUny  0. 
Westmoreland,  52  N.  If.,  4(il,  4(is,  1 1(»,  -M  1,  and  authorities  there 
cited;  //ai»e.^  v.  li.  T.  1.  Co.,  52  N.  H.,  407;  Ilooey  v.  Oiwit 
62  N.  II.,  509.     If  too  remote  in   point  of  time,  evidence  of 


STATE  V.  LAP  AGE. 


629 


other  adulteries  will  be  rejected,  in  the  discretion  of  the  judge 
who  tries  the  case:  Thayer  v.  Thayer,  101  Mass.,  Ill,  114. 
«»Tlie  more  detached,  in  point  of  time,  the  previous  utterings 
(of  forged  bank  notes)  are,  the  less  relation  they  will  bear  to  that 
stated  in  the  indictment.  *  *  *  It  would  not  make  the  evi- 
dence inadmissible:"  Hex  v.  Wylie,  1  New  Rep.,  92,  94;  S. 
C,  2  Leach  C.  C,  973,  985.  "In  the  trial  of  that  ease  {State  v. 
Knapp)  the  judge,  in  the  exercise  of  what  is  called  judicial  dis- 
cretion, allowed  the  parties  to  go  back  fifteen  years,  and  if  he 
had  allowed  them  to  go  back  sixteen  years,  or  only  fourteen,  no 
question  of  law  would  have  arisen  as  to  the  proper  length  of 
time:"    Darling  v.  Weistmoreland,  52  N.  H.,  410. 

On  page  412  of  that  case,  tlie  court  refer  to  Stat^  v.  Went- 
worth,  37  N.  H.,  196,  211,  where  it  is  held  that  the  commission 
bv  tlie  defendant  of  other  crimes  like  the  one  charged,  is  admis- 
BJhlo  to  show  that  he  had  the  strength  and  ability  to  commit  the 
criiiiu  alleged  in  the  indictment,  and  the  wliole  drift  of  every 
paj,'e  of  the  opinion  in  Darling  v.  Westmoreland  is  distinctly 
in  favor  of  that  principle.  Hut,  in  the  course  of  a  lengthy  dis- 
cussion of  the  distinction  between  relevancy  as  a  question  of  law, 
and  temporal  or  local  remoteness  as  a  question  of  fact,  it  is  said 
tliat  in  State  r.  Knapp,  on  the  question  of  the  defendant's 
Btrenii'th,  evidence  of  his  having  committed  upon  various  per- 
Bons  the  crime  of  which  lie  was  accused  would  not  be  ofEered, 
because  it  is  understood  to  be  incompetent.  This  remark,  made 
ill  (ioiincction  with  a  hearty  approval  of  the  doctrine  of  State  v. 
Kniipp  and  State  v.  WentwoH/i,  seems  either  to  give  the  errone- 
ous iiiiprt'ssion  that  sexual  crimes  may  not  be  subject  to  the 
general  rules  of  evidence,  or  to  suggest  that  the  court,  in  Its  dis- 
cretii)ii,  can  exclude  evidence  of  other  rapes  tending  to  show 
strength,  on  the  ground  that  other  evidence  of  strength  must  be 
available,  and  that  proof  of  otiier  rai)es  would  not  ordinarily  be 
offered  in  good  faith  on  the  mere  question  of  strength. 

All  the  evidcmce  objected  to  in  this  case,  except  that  of 
Jiilieinu!  Ilo\isse,  was  competent,  not  only  on  the  question  of 
intent,  but  also  upon  the  question  whether  the  defendant  killed 
the  deceased. 

Josie  Langmaid  was  killed  October  4,  1875,  about  nine  o'clock 

in  the  morning,  on  the  Academy  road,  on  her  way  to  school. 

On  the  first  day  of  October,  about  half-past  eight  o'clock  in  the 

morning,  about  the  time  the  girls  would  be  on  their  way  to  the 

Vol.  11—84 


11 


hi    i£ 


AMERICAN  CRIMINAL  REPORTS. 


academy,  the  Cochran  boy  saw  a  man  jump  into  the  biihlies,  on 
the  side  of  the  Academy  road,  springing  as  if  in  liasto,  witliin  a 
short  distance  of  the  phice  of  death.     On  the  twenty-fourth  of 
September,  at  Fowler's  house,  the  defendant,   seeing  Fowler's 
sister  come  home  and  go  into  the  house,  asked  Fowler  who  she 
was.     Fowler  told  him.     The  defendant  then  wanted  to  know  if 
she  had  been  to  Suncook.     Fowler  told  him  no ;  she  hud  buen  to 
school.      The  defendant  then  wanted  to   know  which  way  she 
went  to  get  there.     Fowler  told  him,  and  pointed  out  toward  the 
academy  to  show  the  direftion,  and  the  defendant  said  that  that 
must  be  the  way  be  came  wluiu  be  came  out  to  Kimball's.    On 
September  twcnty-lifth,   Fowler   carried  the   defendant   home, 
down  Buck  street,  as  far  as  Locke's,  and  at  lluss's  corner  tlie 
defendant  wanted  to  know  if  there  was  where  his  (Fowler's)  sis- 
ter went  to  school.     Fow'ler  told  him  no,  anil  pointed  out  toward 
the  academy  again,  and  told  him  two  miles,  or  a  mile  and  a  half, 
or  a  mile,  "and  then  turn   to  your  right  and  go  uj)."     Sunday, 
September  twenty-sixth.  Fowler  carried  bis  sister  back,  went  to 
Suncook,  and  brcHigbt  the  defendant  out.     As  they  went  i)ast  the 
Academy  road.  Fowler  told  the  defendant  that  that  was  the  road 
on  which  bis  sister  went  to  school.     About  a  week  iu'lort'  the 
fourth  of  0('tober,  when  the  dei'endant  was  tlii'osbiiig  grain  in 
Fowler's  barn,  a  young  lady  passed  by.     The  (Ift'niilaiit  asked 
Mahair  where  that  gal  was  going.     IMabair  said  be  didn't  know. 
The  defendant  asked  what  her  name  was.     Afabair  told  liiiri  her 
name  was  Sarah   Prentice.      The   defendant    wanted    to   know 
where  she  lived.     Mahair  told  him,  going  to  the  door  and  show- 
ing him  as  near  as  he  could.     The  defendant  wanted  to  know 
who  was  going  with  her.     Mahair  said  he  di<ln't  know.     The 
next  day,  as  Mahair  was  going  through  the  l)arn,  the  defendant 
stopped  him,  and  asked  where  that  gal  went  that  went  down  by. 
Mahair  said  he  didn't  know.     The  defendant  wanted  to  know 
who  went  with  her.     Mahair  said  he  didn't  know.     The  dciond- 
ant  again  asked  who  she  was,  an<I  where  she  lived,  and  Mahair 
showed  him  where  she  lived.     Again  the  defendant  asked  who 
went  with  her,  and  said  he  wondered  which  road  she  went  on 
the  most,  and  made  an  obscene  and  vulgar  remark  and  inquiry 
concerning  her.     On  the  second  of  Octol)er,  about  nine  o'clock 
in  the  morning,  about  the  time  the  girls  would  be  on  their  way 
to  the  academy,  Towle  and  his  wife  met  the  defendant  on  the 
Academy  road,  about  fifty  or  sixty  rods  from  the  place  of  death. 


•M* 


ffil 


STATE  V.  LAPAQE. 


531 


the  bll^illes,  un 
lastc,  within  a 
uiity-l'ourth  of 
oiiin  Fowler's 
)wlor  wlio  she 
ted  to  know  if 
le  had  huon  to 
t^hich  Wily  she 
)ut  toward  the 
said  that  tliut 
Jird)airs.    On 
endunt   homo, 
is's  corner  the 
(Fowler's)  sis- 
ted  out  toward 
lile  and  a  half, 
1))."     Siiiidiiy, 
hack,  went  to 
■  went  j)ast  the 
t  was  the  roiu] 
lek   he  tore  the 
diiiiy  "Tain  in 
t'l'MiJant  aski'd 
e  didn't,  know, 
r  told  liiin  her 
ited    to   know 
oor  and  sliow- 
nted  to  know 
t  know.     The 
the  defendant 
A'cnt  down  by. 
nted  to  know 
The  defend- 
d,  and  Maliair 
mt  asked  who 
1  she  went  on 
k  and  inqiiirj 
it  nine  o'clock 
!  on  their  way 
Liudant  on  the 
)hiee  of  death. 


The  defendant  was  carrying  a  stick  beliind  liim,  similar  in  all 
respects  to  a  stick  afterwards  found,  broken  and  stainerl  with 
blood,  near  the  place  of  death.  On  the  last  Sunday  of  Septeni- 
her,  Anna  Watson,  on  her  weekly  return  from  her  home  in 
Allenstown  to  her  school  in  Ilooksett,  was  pursued  by  the  defend- 
ant a  considerable  distance,  and  until  he  came  in  sii:;ht  of  Jllack 
or  Mercy,  when  he  suddeidy  disa])peared  in  the  woods.  He 
carried  a  club,  and  Ins  face  was  red  and  excited.  He  ran  after 
her  more  than  half  a  mile. 

All  this  evidence  tends  to  show  that  the  defendant  killed  Josie 
La!ij,'maid.  It  shows  that  the  neighborhood  of  the  place  of 
death  was  his  huntin_i!,-f^round,  and  it  shows  the  object  and  intent 
of  his  habitual  hunt.  Change  all  this  evidence  oidy  so  far  as  to 
substitute  partridges  for  women — and  suppose  the  question  were, 
whether  this  defendant  killed  a  partridge,  found  cut  in  pieces 
where  the  remains  of  Josie  Langmaid  were  scattered;  if  his  talk 
with  Fowler,  relating  to  Fowler's  sister,  had  related  to  partridges ; 
if  he  had  inqtiired,  not  which  way  she  was  accustomed  to  go  to 
school,  but  where  partridges  were  plenty ;  if  Fowler  had  twice 
told  him  they  abounded  on  the  academy  road,  and  pointed  out 
the  place;  if  his  remarks  and  inquiries  addressed  to  ISfahair  had 
not  related  to  Sarah  Prentice  and  the  road  she  went  on  the  most, 
and  had  not  been  obscene  and  vulgar,  l)ut  had  been  such  as  to  show 
he  was  meditating  a  partridge  hunt;  if  his  interrupted  chase  of 
Anna  Watson  had  been  an  interrupted  attempt  to  kill  part- 
ridges— would  any  one  object  to  all  this  evidence  on  the  ground 
that  it  did  not  .show  a  spetiial  intent  to  kill  the  particular  part- 
ridge that  was  found  dead  i!  If  a  man  had  been  robbed  at  the 
place  of  death,  w»»uld  all  this  evidence,  so  far  altered  as  to  relate 
to  men  accustomed  to  carry  large  amounts  of  money,  be  excluded 
becaust!  the  man  who  was  robI)ed  was  not  one  of  those  concern- 
ing whose  roiite  the  (hd'endant  had  previously  inquired,  or  whom 
he  had  previo\isly  pursued?  How  would  the  competency  of 
such  evidence  be  alfected  by  the  circumstance  that,  by  some 
accident,  tlie  travelers  concerning  whom  the  defendant  inquired 
happened  to  escape,  and  that  another  happened  to  be  the  victim  ? 
— or  by  the  circuuistance  that  in  one  instance  the  robbing  intent 
was  exhibited  by  a  pursuit  more  significant  than  such  an  inquiry 
about  a  person's  route  as  tends  to  show  a  design  to  waylay  or 
pursue  him  ?  Tiie  gist  of  such  evidence  is  not  merely  in  show- 
ing an  intent  to  rob  the  particular  travelers,  who  providentially 


mmrrmfwff 


632 


AMERICAN  CRIMINAL  REPORTS. 


m. 


:!,  t 


i.   'it 


If' 


1  -i-i 


escaped,  but  in  showing  an  intent  to  rob  any  one  who  would  be 
likely  to  have  what  the  defendant  wanted.  Are  professional 
highwaymen  to  be  iiecjnitted  by  the  exclusion  of  previous  inten- 
tions, preparations,  and  attempts,  because  such  evidence  relates 
to  anybody  they  may  meet,  and  not  to  the  particular  victim 
named  in  the  indictment?  Is  the  region  round  about  every  girls' 
school  in  the  land  to  be  infested,  as  the  neighborhood  of  this 
academy  was,  by  a  professional  hunter  of  women,  a  fugitive  from 
justice,  flying  from  a  foreign  country  to  this  for  the  safe  con- 
tinuance of  his  i)usinc88  ?  And  are  such  men  to  be  encouraged 
by  being  excepted  from  the  rules  of  evidence  that  apply  to 
forgers  and  counterfeiters  ?  Are  our  daughters  to  be  exposed  to 
human  beasts  of  prey,  incited  to  their  diabolical  work  by  an 
exemption  from  the  operation  of  those  general  principles  by 
which  even  our  miserable  currency  is  protected  ? 

The  testimony  of  the  Cochran  boy  tends  to  show  that  about 
school  time  some  man  was  prowling  about  the  academy  road,  who 
was  unwilling  to  l)e  seen  and  recognized  by  that  boy.     It  tends 
to  show  that  Josio  Langmaid's  death  was  not  accidental.    Why 
was  that  boy  allowed  to  pass  unharmed  ?     His  sex  saved  liiiii. 
Is  not  that  fair  matter  of  inference  and  argument  ?     The  defend- 
ant hunted  neither  men  nor  boys,  nor  old  women.     Tlie  fact  that 
Fowler's  sister  was  accustomed  to  go  to  tlie  academy,  over  tlie 
academy  road,  was  a  subject,  that  interested  him  on  Scptcniher 
24,  25  and  26.     On  October  2,  about  the  time  the  girls  would  be 
going  to  school,  he  walked  on  that  road  cariTing  a  stick,  similar 
in  all  respects  to  the  one  found  two  days  afterwards,  broken  and 
stained  with  blood,  near  the  place  of  d(Mith.     His  talk  with  Fow- 
ler about  Fowler's  sister,  his  talk  with  Mahair  about  Sarali  Pren- 
tice, and  his  pursuit  of  Anna  Watson,  tend  to  show  that  .fosio 
Langmaid's  death  was  not  accidental ;  that  she  fell  a  victim  to 
the  purpose  for  which  the  defendant  hunted  in  that  region — tlie 
purpose  for  which  he  so  eagerly  and  repeatedly  inquired  about 
the  usual  routes  of  Fowler's  sister  and  Sarah  Prentice — the  pur- 
pose for  wliicdi  he  so  hotly  pursued  Anna  Watson.     If  he  huiitod 
beasts  of  the  field  or  fowls  of  the  air  in  that  neighborhood,  tliat 
fact  woulil  be  cn'idence  on  the  question  whether  a  beast  or  bird 
(of  the  class  which  he  hunted),  found  killed  in  that  neiglibor- 
hood,  was  killed  by  him.     If  he  went  forth  to  rob  any  one  he 
might  meet,  that  fact  would  be  evidence  on  a  question  of  rob- 
bery. 


^^^1 


STATE  V.  LAPAGE. 


688 


The  testimony  of  Coclirun,  Fowler,  ^Miiliuir,  Tuwlu  and  wife, 
Mrs.  Watson  and  dauj^litcr.  and  ^ruroy,  tends  to  show  that  the 
defendant  roamed  about  tliat  district  for  some  purpose;  that  his 
purpose  was  not  to  pick  beri-ies,  as  Muck  did,  not  to  rob  any  one 
of  money,  not  to  escort  tlie  feel)Ier  sex  throuj^h  woods  and 
bushes,  and  protect  tliem  ajrainst  the  pe^-uliar  insults  and  out- 
rages to  which  that  sex  is  exposed  in  solitary  places,  not  to  revive 
the  spirit  and  practice  of  chivalry  for  the  defense  of  women,  but 
to  practice  upon  them  the  reviviiii>'  ferocity  of  a  barbaric  age. 
And  Josie  Langmaid  was  found  killed  and  mutilated  in  a  man- 
ner corresponding  to  tlie  purpose  for  wliich  he  ranged  that  part 
of  tlie  country. 

All  the  evidence  which  1  have  thus  far  considered  tends  to 
show  that  the  defendant  killed  tlie  deceased,  and  also  the  intent 
with  which  he  killed  her. 

II.  The  jury  having  found,  on  other  evidence  than  that  of 
Julienne  Ronsse  that  the  defendant  committed  the  liomicide,  her 
testimony  was  competent  to  show  the  intent  with  wiiicli  he  com- 
mitted it.     Her  testimony  was.  that  he  connuitted  a  rape  upon 
her,  at  St.  Beatrice,  in  Canada,  four  years  and  four  inoritlis  before 
the  homicide.      It  was   necessary    for  the   state   to    prove  the 
defendant's  intent  to  commit  a  rape  upon  tlie  deceased.     IF  he 
killed  her  without  premeditation,  in  a  struggle  coiise(|iK>iit  upon 
his  insulting  her,  or  committing  an  indecent  assault   upon   her, 
without  any  raping   intent,  there  was  no  ground  on   wliidi  he 
could  be  found  guilty  of  the  first  degree  of  murder.     .\iid  all 
the  other  evidence  might  be  explained  on  a  hypotllesi^  of  that 
kind,  consistent  with  his  innocence  of  that  degree  of  murder. 
Whether  such  an  explanation  would  raise  a  reasonable  doubt  in 
the  mind  of  any  juror,  who  can   tell  ?     It  was  the  duty  of  the 
state  to  leave  no  room  for  doubt.     And  on  the  question  whether 
his  intent   was  to  commit   an  indet'ent  assault,  or  to  commit  a 
rape,  what  better  eviileuce  coidd  be  had  than  his  intent  on  other 
similar  occasions  when  he  was  not  interrupted  antl  defeated,  as 
he  was  in  his  pursuit  of  Anna  Watson  'i     If  a  man's  intent  to  pass 
counterfeit  money  at  one  time  is  evidence  of  his  intent  to  pass 
other  counterfeit  money  found  in  his  possession  at  another  time;  if 
his  intent  to  sell  liquor  at  one  time  is  evidence  of  his  intent  to  sell 
other  liipior  at  another  time  ;  if  his  intent  to  send  one  negro  boy 
into  slavery  is  evidence  of  his  intent  to  make  the  same  disposi- 
tion of  another  found  in  his  possession — why  is  not  his  intent  to 


H!i 


534 


AMKUK.'AN  (MIIMINAL  UEPOUTS. 


commit  a  rsipe  upon  Julicniio  lt«)usse,  wlien  he  took  possession  of 
lier,  evidoiice  of  his  intent  to  make  the  saino  disposition  of  ,losie 
]^!Ui^mui(l,  wlion  ho  took  jMisscssion  of  hart  Manifestly  tlm  only 
ohjection  to  this  evidence  is  tlie  remoteness  of  the  rape  in  point 
of  time  and  ])Iaee.  It  is  setth^l  hy  the  autli(»rities  whicii  I  luive 
cited,  tiiat  tliat  oi)jeetion  raises  a  (juestion  of  fact  within  thediscre- 
tion  of  the  court,  and  not  a  (piestion  of  hiw.  The  (|nestioii  of 
dis(!retion  is  reserved.  ShouUl  the  jud<;nient  i»e  reversed,  and  u 
new  trial  irranted,  on  the  jrround  that,  as  a  matter  of  fact,  the  rupe 
to  wliieli  .Iulienn<!  llousse  testilied  was  tem[)oralIy  or  hx-aiiy  too 
remote  to  he  (!ntit!(Ml  to  any  weifj^ht  on  the  question  wiiether  tlie 
intent  witli  which  the  defendant  assaulted  the  deceased  was  the 
same  as  that  with  which  he  assaulted  Julienne  liousse  ^ 

If  he  had  passed  counterfeit  money  at  the  time  and  place 
when  and  where  he  raped  .lulieiine  llousse,  and  oMii>r  counterfeit 
money  had  heen  found  in  his  p<issession  at  the  time  ami  phice 
when  and  where  he  killed  .losii;  Liin^maid  ;  if  Ik;  had  sold  li(jiior 
at  the  former  time  and  place,  and  other  li(pior  had  iteen  I'mind  in 
liis  possession  at  the  latter  time  and  place;;  if  he  had  p)t  ;i  luirm 
hoy  into  his  possi'ssion  at  the  former  time  and  place  with  intent 
to  send  him  into  slavi;ry,  and  had  j^ot  another  nej^'ro  hoy  into  his 
]»ossession  at  the  latter  time  and  place  -  would  there  he  any 
(loul)t  that  his  intent  on  the  former  oeciision  would  in  fact  he 
eousidert'd,  l>y  every  intellij^eiit  memlter  «d'  the  human  faniilv, 
as  entitled  to  some  weight  on  the  (|iiestioii  of  his  intent  on  the 
latter  oce-asion  i  If  a  shi|>master  lands  in  ( 'on;fo,  ohtains  ;i  cari,'!! 
t(f  blacks  an<l  carries  them  to  Cnha,  and  four  years  and  luur 
months  afterwards  he  is  found  at  another  place  on  the  AlVican 
coast,  as  fur  from  ( 'oii^o  as  l'eud)r(die  academy  is  I  mm  Si.  Ilca- 
tric«!,  with  a  hundred  hiacks  in  his  possession,  would  anylKiily 
think  that  his  provecl  intiiut  on  the  foriner  occasion  had,  as  u 
matter  of  fact,  no  tendency  to  show  what  he  intended   to  do  on 

the   latlei casion  j      What  want  of  an;il(»:ry   if*  there   hctwccn 

makinjf  prisoners  of  Macks  at  such  dilTcrent  times  ami  places, 
and  makiiii;  prisoiu'rs  (d"  these  two  youn<;  W(»uien  ^  \Vh;it  is 
tln^re  in  tin.'  c<dor  td'  the  captives  in  the  former  case  that  can 
carry  more  siiiiiiticance,  from  the  proved  intent  of  their  ca|iliir 
in  omt  ahduction  to  the  tpu'stion  of  his  intent  in  amither,  than  is 
carried  in  this  case  hy  their  a;.je  and  .^ex.  ( )r  carry  the  si^nili 
cance  across  a  ;^rcater  interval  of  time  or  place,  what  is  there  in 
the  act,  the  circumstaiuies  or  the  inti-nt   (»f  kidnaping,  or  passiu}; 


lAA 


STATE  t>.  LAPAGE. 


635 


co'intorfeit  money,  or  selling  li(in<)r,  that  makes  us  feel  the  prob- 
ative force  of  the  proved  intent  of  one  occasion  upon  the  (pies- 
tioii  of  intent  four  years  and  four  months  afterwards,  and  pre- 
vents our  feeling  any  probative  force  of  such  evidence  in  the 
present  case  ^  Tluire  is  no  distinction  that  can  exempt  sexual 
cases  from  the  elTect  of  the  opcu-ation  of  such  evidence  upon  the 
human  mind,  or  shorten  in  those  cases  the  temporal  or  liM-al  dis- 
tiuice  reached  by  such  evidence,  in  other  cases.  That  is  j)lainly 
true,  iw  a  matter  of  fact ;  and  it  is  a  mere  matter  of  fact  that  we 
are  i^Hisidering. 

The  distance  of  place  is  immaterial.  The  defendant  could 
have  g<»ne  in  a  few  hours  from  the  ])lace  where  he  clutched 
Jiilicmu^  llonsse,  to  the  ])lac.e  where  he  pounced  upon  Josie 
Liingmaid.  There  was  nothing  in  either  of  the  places  peculiarly 
calculated  to  create  or  destroy  an  intent  to  jjass  counterfeit 
nionev  or  toconuiiit  a  sexual  crime.  The  distance  of  time  is  the 
onlv  p(»ssii»l(!  ground  of  (»lijcction. 

On  this  point  I  must  appeal  to  the  court  as  I  would  a|)peal  to 
a  jury,  lu'canse  the  (piestion  is  oik*  not  of  law,  hut  of  fact.  If 
your  honors  were  the  soU;  trii»UMal,  trying  tlm  dcrendant  upon 
this  indictment,  and  sworn  to  decide  upon  grounds  of  natural 
law,  nat.iral  reason,  and  human  experiiMice,  upon  such  evideiure 
as  on  those  grounds  sticiiuMl  (^ipahle  of  alTording  any  light,  would 
you  receive  the  testimony  of  .Julienne  liousse'^  1  do  not  hesitate 
to  assert  that  you  would  receive  it,  and  weigh  it.  No  man  on 
earth  wonltl  refus(^  to  hc^ir  it,  or  t(»  consider  it,  unless  he  were 
hound  l»y  somi^  arhitrary  and  irrational  rule  overriding  his  uiuler- 
Htaiidinir,  and  diclaling  a  course  at  war  with  his  common  sense. 
Your  honors  would  give  it  some  wi'ight,  because  you  would 
iufallihlv  know,  from  tin;  teaching  of  history  and  universal  expe- 
rience, vour  knowledge  of  human  nature,  and  the  authority  of 
an  intuition  supei'ior  to  all  arlilicial  reasoniiii;,  that  tlu;  evidence 
of  the  intent  with  which  the;  did'endant  seized  . I ulieniie  Itousso 
has  somt'  temlcncy  to  sii(»w  the  intent  with  which  he  seized  Josie 
Lani,nMaid,  notwithstanding  the  two  seizures  were  separated  by 
the  distance  of  four  years  and  four  months.  Whether  the  weight 
of  the  «'vidence  is  diminished  by  that  lapse  of  time,  and  if  S(»  how 
nnu'h,  are  (pieslioiis  that  ilo  not  arise  here.  Ihit  tluMpiestiou 
whether  voiii-  honors,  in  the  supp<ise(l  trial,  would  receive  the 
evidence  and  give  it  S(»me  weight,  is  thi!  very  (piestion  to  be 
decich.'d   in   this   cast';    for  it   is  settltid   that   whether  evidence 


536 


AMEUICAN  CRIMINAL  UEPOHTS. 


U:    ' 


should  be  excluded  for  temporal  or  local  remoteness  is  a  question 
of  fact,  and  not  a  question  of  law ;  and  tlie  (juetstion  of  fact  here 
is,  whether,  on  those  grounds  of  natui-al  l:i\v,  natural  reason,  and 
human  experience,  upon  which  such  a  (piestion  of  fact  must  be 
decided,  the  intent  with  which  tin  'Icfendant  assaulted  Julienne 
Rousse  is  capable  of  affor'  ,  light  on  the  intent  with  which 

he  assaulted  the  deceased. 

For  error  in  ruling  on  a  question  of  law,  the  court  might  feel 
bound  by  precedent  to  grant  a  new  tr'  il  nit  hough  satisticd  that 
no  injustice  had  been  done.  P»iit  on  i.ns  (jiirstion  of  discretion, 
in  which  not  law,  but  justice  alone  is  concerned,  will  the  court 
reverse  the  judgment  of  the  circuit  court,  without  any  cause  Uj 
believe  that  the  defendant  has  sutT  r    1  ictual  wrong? 

It  will  be  admitte<l,  I  suppose  that  every  intelligent  person, 
untrammeled  by  technical  rules,  will  concur  in  the  oj)itiion  of 
the  circuit  court.  And  the  question  l)eing  one  of  pure  fact 
unmixed  with  law,  and,  therefore,  not  subject  to  technical  rules, 
on  what  ground  will  any  one  dissent  from  the  unanimous  judg- 
ment of  the  rest  of  mankind?  If  that  unanimous  judgment 
were  a  conclusion  of  metaphysical  subtlety,  or  scholastic  sophis- 
try, or  a  blind  faith,  bas(!d  on  an  evident  obliquity  of  mental  or 
moral  vision,  a  misunderstiuiding  of  natural  phenomena,  ignor- 
ance of  the  laws  of  the  material  or  spiritual  universe,  or  a  tradi- 
tion or  superstition  that  had  survived  the  low  civilization  of  its 
origin,  it  might  be  a  feel)le  authority.  Hut  it  is  the  spontaneous 
and  irreversible  judgment  of  every  grade  of  intellect  that  ha^ 
appeared,  or  is  likely  to  appear,  in  this  state  of  existence.  It  is 
an  involuntary  and  unavoidabh!  perception  of  the  inherent  and 
self-evident  relations  of  conduct  and  intention  ;  a  mental  revclar 
tion  as  natural  as  memory,  and  us  trustworthy  ami  unanswcralile 
as  consciousness.  Why  should  any  one  be  j)articularly  anxious, 
in  this  case,  to  introduce  not  a  legal  prin('i|)le,  but  a  dogma  of 
fact,  refuted  by  the  instinctive  knowledge  of  the  whole  iium.ui 
race?  If,  in  the  administration  of  justice,  the  expiTiiiieiit  is  to 
be  tried  of  deciding  sucdi  (piestions  of  fact  as  this  in  deliance  of 
the  innate  and  universal  logic  of  ratioiud  (freatures,  it  certaiidy 
is  not  necessary  that  this  (dass  of  cases  should  be  stdi'ctiMJ  lor  the 
attempt.  In  asking  that  the  (^\pel•iment  may  not  be  first  tried 
in  a  case  of  this  kind,  I  ultiu-  the  fervent  reiiionstniiice  and 
prayer  of  every  fatlur  and  mother  who  has  a  daughter,  at  school 


i 


STATE  c.   LAPAGE. 


fiST 


or  at  home,  exposed  to  the  fate  of  Georgie  Lovering  and  Josie 
Lan,i,'inaid.* 

ir.  T.  iVor/'is  (witli  whom  were  S.  B.  Page  and  //.  W. 
Greene),  for  the  respondent. 

Ill  urging  our  bill  of  exceptions,  what  of  it  rolatos  to  the  tes- 
timony of  .lulienne  Rousse  will  iirst  bo  considered. 

{Joniinenting  on  the  use  the  jury  might  make  of  it,  the  court 
gave  thein  this  instruction:  "It  is  a  fundamental  principle  of 
law,  that  evidence  that  the  defendant  committed  one  offense  can- 
not be  received  to  prove  that  he  committed  another  and  distinct 
offense."  Here  is  a  familiar  principle  well  enough  stated.  It  is 
indeed  fundamental — old  as  the  common  law,  and  wise  as  com- 
mon sense. 

No  claim  is  made  by  us  to  exclude  her  testimony  from  use, 
under  the  direction  of  the  court,  because  it  proves  another  offense, 
!)Ut  because  it  proves  a  distinct  offense.  Put  the  word  transac- 
tion in  the  place  of  the  word  offense,  and  we  encounter  the  same 
objection.  It  all  rests  on  the  ground  of  distinction.  Want  of 
coiniection — the  crime  disclosed  with  the  crime  charged — is  the 
reason  of  the  exclusion.     It  has  no  other  foundation. 

Crime  is  made  up  of  act  and  intent  coml)ined.  Without  the 
evil  intent,  or  what  amounts  to  it  in  law,  there  is  no  guilt. 
Without  the  overt  act  there  is  no  sin,  in  the  eye  of  human  tribu- 
nals. And  it  seems  to  be  agreed  on  all  hands  that  such  evidence 
aii  hers  is  not  <u)mpetent  in  proof  of  the  act  of  murder.  Up  to 
this  |)oiiit  there  is  no  controversy.  "Only  upon  the  question  of 
intention,  and  thus  upon  the  degree  of  guilt,"  does  the  court 
below  attempt  to  make  it  competent. 

No  exception  was  taken  to  the  charge,  because  the  use  the  jury 
was  instructed  to  put  the  evidence  to,  after  it  was  in,  was  ])erhap8 
as  well  for  our  client  as  any  charge  could  have  directed.  Our 
objection  went  to  its  admission.  It  went  in  subject  to  our  objec- 
tion. As  it  wi'Ut  in,  the  jury  were  free  to  use  it  on  any  question 
before  them.     If  only  two  questions  were  in  issue,  they  could 

*h\  tlic  trial  of  Mr.  ITiiwkins,  n  (•Ifrayiiiim,  for  slciilinir  nionoy  iind  a 
riiii;  from  llniry  IjiiriiiKirci  in  Si-pli^ntln'r,  liKiS,  Lord  Hale  inliiiilii'il  evidence 
tosliow  lie  li.id  i)nc<'  stolen  a  pair  of  i)oois  frmn  a  man  called  Cldltoti,  and 
thllt,  liioie  lliall  M  Vi'ar  before,  lie  had  piri;ed  tlie  poeliets  of  one  Nohle.  In 
suinniini^  np,  Lord  Hale  said,  al'lri'  referriiiir  lo  the  ease  of  Chilton  and  Noble, 
"Tins,  if  trui!,  would  render  ilie  pri-nner  now  ai  the  liar  olmoxions  to  ttuy 
Jury:"    (i  Howell's  Stale  Trials,  I):!*).     (This  was  'JOS  years  a.^o.) 


i 


"wmwWW' 


I',!,' 


^il: 


■:-| 

,:t' 


■tii 


538 


AMERICAN  CRIMINAL  REPORTS. 


use  it  on  eitlier.     But  the  court  tells  them  they  must  use  it  on 
but  one  of  the  two.    How  could  we  object  to  that  ?    What  is 
the  exception  to  that  charge  ?     After  deferring  unduly,  as  we 
believe  the  court  did,  and  against  our  exception,  to  what  the 
extcnial  exigencies  of  the  cause  were  clamorously  demanding, 
what  right  had  we  tlicn  to  object  to  a  partial  correction  of  the 
error  and  prevention  of  the  injury  ?     Why  talk  about  "  an  unex- 
ceptionable charge  ?  "     Wo  could  not  object  to  what  was  charged 
in  our  favor.     Our  wish  was,  tliat  nothing  be  charged  as  to  how 
this  evidence  might  be  used.     Our  objection  to  its  admission 
would  then  have  its  full  force.     If  the  charge  had  been  that  it 
be  not  used  at  all,  we  had  to  th.at  charge  no  valid  objection.  But 
the  jury  would  have  had  the  evidence,  and  we  miglit  have  lost 
our  objection  to  its  admission.     What  the  court  did  say  in  the 
charge  we  could  not  object  to,  and  still,  the  more  it  did  not  say, 
the  better  for  the  objection  already  taken.     We  were  in  a  strait, 
with  the  less  said  tiie  better.     Hut  do  not  call  it  "unexception- 
able."    "  Take  any  shape  but  that,"  my  adroit  friend.     Our  tirm 
nerves  tremble,  and  our  checks  blanch,  before  even  a  shade  of  a 
ghost  of  a  right  slaughtered  or  lost  by  our  negligence.     Do  not 
try  to  save  your  verdict  by  making  a  "corner"  on  us  for  not 
excepting  to  the  charge.    W^liat  then  is  "  the  only  question  of  law 
raised  by  the  bill  of  excepti(»ns?  "     Not,  we  submit,  "whether 
the  evidence  objected  to    is  admissible  for  any   purpose.     Xo 
claim  is  made  that  the  evideiKU!  we  are  now  considering  has  any 
legal  tetidencv  to  show  that  the  defendant  killed  the  deceased." 
Jlas  it  any  legal  tendency  to  show  "that  ho  intended  to  cuiiniiit 
a  rape  upon  her  if  "     Is  the  intent  to  commit  a  rape  upon  her  in 
(|uestioii  ?     It  is  the  act,  either  of  attempt  or  ])er|)('tniti(>n  of 
that  crime,  resulting  in  murder,  that  must  be  sln»wn.     No  matter 
about  any  express  intcmtion.     One  may  be  implied  if  the;  act  be 
proved.      Our  obji'ction   to   the   evidence   raised    the   (picstion 
■whether  it  was  inadmissible  for  any  reason.     It  may  hv,  compe- 
tent on  one  groun<l,  but  incompetent  on  anotlu^r  gronn<l.    lliidor 
our  general  exception,  we  take  it  we  have  the  beiielit  of  this 
distinction.     How   much   of  it   is  tak(Mi  away  from   ns  by  tlw 
B])ecial  charging  of  the  court?     Pray,  give  us  all  thcn^  is  loft. 
And,  even  then,  do  not  hang  our  client  because!  the  court  below 
erred  in  not  assigning  idm  counsel  a  match  for  all  the  regular 
and  special  counsel  for  the  statu,  aided  by  a  whole  train  of  them 
fiom  over  the  bordcjr. 


STATE  V.  LAPAGK 


539 


lust  use  it  on 

at?    What  is 

unduly,  as  we 

,  to  wliat  the 

y  (leiiianding, 

rcftion  of  the 

out  "  an  unex- 

it  was  charged 

Xt'd  as  to  how 

its  admission 

d  been  that  it 

bjection.  But 

ight  have  lost 

did  say  in  the 

it  did  not  say, 

ere  in  a  strait, 

"  unexception- 

nd.     Our  tirm 

n  a  shade  of  a 

ence.     Do  not 

on  us  for  not 

uestion  of  law 

mit,  "  whether 

purpose,     ^'o 

(leriiijx  has  any 

the  deceased." 

led  to  cuimnit 

e  upon  her  in 

nM'pi'tration  of 

II.    No  matter 

d  if  th(!  aet  be 

the   (pu'stion 

nay  hi;  coiMpe- 

round,    lliuler 

benefit  of  this 

DUi   us  by  tl)« 

\  there  is  left, 

10  ct»urt  i)elow 

ill  the  regular 

train  of  them 


Actual  proof  of  intention  is  not  always  needed.  Malice,  the 
essence  of  all  crime,  may  be  express  or  implied :  Browti  v. 
Cmiiiivnwealtk,  7C  Penn.,  319. 

It  is  not  indispensable  to  a  conviction  that  a  motive  be  proved : 
People  V.  Rohiruson,  1  Parkei-  C.  R.,  fi-14. 

Murder  by  a  free  moral  a<,5ent,  wlien  no  motive  or  provocation 
is  shown,  we  take  it,  must  be  of  tiie  first  decree.  LFnder  the 
laws  of  causation,  claimed  to  be  universal,  sane  men  act  from 
motives.  Madness  may  have  method  in  it ;  but  with  a  sound 
mind  and  well  proved  act  as  given  data,  all  needed  motive  is 
presumed.  And,  in  the  case  at  bar,  no  real  intention  to  murder 
need  be  either  proved  or  implied.  It  is  enough  if  a  rape  waa 
attempted  or  perpetrated,  and  the  murder  followed.  Take  away 
the  rape  and  the  attempt  of  it,  and  iix  the  act  of  killing  upon 
the  respondent,  and  then  his  crime,  without  other  proof  of  intent, 
takes  the  utmost  degree  of  enormity.  "  Sex,  age  and  nuitila- 
tion"  may  not  alone  bridge  over  "the  wide  gulf  between  "  mur- 
der and  death  from  accident,  disease  or  suicide,  or  the  thousand 
and  one  mere  figment.s  of  the  biain  that  may  be  conjured  up  to 
hold  open  the  door  the  circuit  court  ought  to  have  kept  shut  and 
securely  barred.  Ibit  the  point  we  make  here  is,  that  no  actual 
proof  of  express  malice  of  any  kind  was  math;  essential,  by  any 
phase  of  allegation  or  answer,  either  in  pleadings  or  i)roof8  the 
case  presented. 

Under  our  stattite  defining  the  degrees  of  murder,  arson,  rape, 
rohliery  and  burglary,  in  i-onditiotis  there  given,  are  merged  in 
the  greater  crime,  as  much  as  poisoning,  starving  or  tcjrturing. 
Hence,  none  of  these  acts  thus  ending  in  murder  can  be  the 
motive  of  the  murder.  No  act  or  thing,  nor  any  part  of  it,  can 
he  the  cause  of  its  own  being.  Instead  of  motives,  then,  these 
acts  or  attcimpts  are  mere  methods  or  occasions  of  the  murder. 
Hence,  evidencie  tending  to  prove  the  act  of  rape,  tends,  by  the 
ganii^  token,  to  prove  the  act  of  murder ;  and  if  it  is  to  bo 
excluilctl  becausi!  it  tends  to  prove  the  act  of  murder,  by  the 
same  rule  it  must  bo  (ixdnded  from  proving  the  act  of  rape. 

Premeditation  of  crime,  or  the  means  to  do  it  with,  may  pro- 
cede  the  bari'  act  of  it  a  long  time.  Hence,  evidcsnce  of  them 
may  seem  to  take  a  wid(!  rangt;  in  both  time  and  space.  Uuying 
poison  may  be  shown,  or  stealing  it,  no  doubt,  with  burglary  and 
arson,  perhaps;  it  may  be  a  witness  of  a  former  crime,  or  a  par- 
(ieepn  ciii/il/iin  liable  to  turn  state's  evidence,  who  is  put  out  of 


'W 


640 


AMEiilCAN  CRIMINAL  REPORTS. 


the  way ;  prior  like  attempts  on  tlie  same  person  or  tliiiv^,  or 
like  crimes  on  other  persons,  but  standing  in  similar  njutioiis 
and  giving  rise  to  the  same  motives;  sexual  crimes  or  acts  inJi. 
eating  a  desire  of  change  in  marriage  relations — in  all  tiicsD  eiiseg 
and  many  more  found  in  the  hooks,  a  prior  crime  may  l)u  dis- 
closed;  but  in  all  of  them  this  disclosure  is  a  mere  incident,  not 
as  in  the  case  at  bar,  an  element,  or  the  burden  of  tiie  cviiJiMicu. 
And  this  we  understand  to  be  the  true  rule  and  spirit  of  all  the 
authorities.  It  completely  covers  and  dis[)oses  of  all  the  iiiiinK;r 
cases  cited  on  the  other  side :  on  a  charge  of  shooting  with  intint 
to  kill — proof,  shooting  at  the  same  person  at  aiiotlicr  time- 
charge,  murder  of  her  husband  by  |ioison — proof,  three  of  her 
sons  being  subsecpiently  poisom-d ;  ciiarge,  murdering  her  chil- 
dren by  poison — proof,  two  otlier  (fhildren  of  hers,  and  a  lodnri.]. 
in  the  house,  had  died  of  poison;  charge,  murder  (»f  (lariici's 
mother  by  poison — pn»of,  the  wife,  also  charged,  had  lived  in  hi,< 
family  as  a  servant  when  his  first  wife  died,  and  that  she  died  of 
poison;  charge,  murdering  her  infant  by  suffocation  in  Ited— 
proof,  deaths  of  her  other  childi'en  at  early  ages;  idiarge.  mur- 
dering II. — j)r(>of,  H.  had  been  emphn'ed  b}'  the  didVndiuit  to 
murder  I'.  ;  (diarge,  murderiiig  the  defendant's  wife  — jjionf.  his 
adulterous  intercourse  with  another  woman;  charge,  murder— 
proof,  adulterous  intercourse  lt(;tween  the  de'endaiit  and  the 
wife  of  the  deceased ;  not  a  single  one  of  them  in  viohiliointf 
the  rule  laid  down  in  Slidjf'iter  v.  Comiiionit^ealth,  72  reiin..  tlo. 
"To  make  one  criminal  act  evidence  of  another,  a  eoniiection 
between  them  must  have  existed  in  the  mind  of  the  actor,  link- 
ing them  together  for  some  purpose  he  intended  to  aeeoiii|)li>|i." 
Take  the  authority  quottid  in  the  charge:  "  \Vheiie\ii'  the 
evidence  which  tends  to  pro  "e  the  other  crinm  telld^  alsu  to 
prove  this  one,  not  merely  by  siiowing  the  prisoner  to  lie  a  liinl 
man,  but  by  showing  the  particular  bad  intent  to  have  existed  in 
liis  mind  at  the  time  he  did  tin;  act  complained  of,  it  i>  idiuis- 
sible" — not  tnertdy  by  slutwing,  as  in  this  ease,  th.tt  the  prisoner 
had  a  native  propensity,  by  him  hidil  in  cotnnion  iu  kind  with  all 
other  men,  liable,  in  him  and  them,  to  be  inordinately  intlanieii; 
n<»r  by  nirrely  showing  liiin  (,o  he  a  bad  man,  because  in  him  it 
had  becju  so  inllamed  in  a  single  instance  by  a  single  person.* 
menib(;r  of  his  family,  after  years  (»f  fafriiliai'ity  and.  perlMiis, 
fascination,  but  by  shi>wiu^  this  purticular  bad  intent  or  inllum- 


»A»"if«»i"*-^  .«--^_ 


STATE  t.  LAPAGES. 


541 


II  or  tiiiiijr,  or 

iiiliii-  relations 

-'s  or  acts  iiidi. 

nil  these  ciises, 

iL'   may  l)e  dis- 

^  iii<-'i<k.'iit,  not, 

tin;  evidiMice. 

pii'it  of  all  the 

ili  the  iiuinltii' 

in_o'  with  illicit 

another  tiino; 

f.  thi'ee  of  Ik;). 

riii^-  her  chil- 

s,  and  a  ludnrci' 

IT  of  (iariier's 

iiid  lived  ill  lij^ 

hat  she  died  of 

atioii    ill   hid— 

* ;  idiaru'e,  uiui'- 

Hi  dtd'eiidaiit  tu 

I'ife  — pronf.  liJK 

arp*,  murder— 

'ndaiit    and   the 

in  viola! iuii  of 

,  72    I'eiiii..  till. 

r.  a   coiiiiection 

the  actor,  link- 

to  accoiii|)ll«li.'" 

\Vhei(e\ii'  rlit! 

t   tend.-  alsci  to 

er  to  he  a  huil 

have  eXi -led  in 

of,  it   is  .idmis- 

lat  The  [iriMiiitT 

ill  kind  with  ail 

atrlv  iiitlaiiied; 

aiise   in   hiiii  it 

in;^le  person.  % 

and.    perlM|«, 

itent  or  iiillain- 


mation  of  passion  to  have  actuated  hitii  at  this  time,  and  on  this 
occasion. 

Take  our  own  case  {State  v.  Knapp)  cited  on  the  other  side. 
On  one  point  we  do  not  believe  in  its  doctrine.  It  is  not  well 
considered.  It  has  some  aid  from  other  cases,  but  it  is  not  sound 
lo<?ic,  it  is  not  good  law,  it  is  not  common  sense,  to  infer,  as  it 
does,  an  act  of  such  extreme  criminality  from  incipient  acts 
ordinarily  having  a  mucli  less  criminal  but  more  natural  ending; 
but  on  proving  strength  to  commit  the  crime  alleged,  it  is  sound 
as  a  rock.  Physical  strength  is  a  physical  fact,  to  be  proved  like 
any  other  physical  fact,  when  courts  and  juries  are  expected  to 
nse  their  own  experience  and  observation  of  the  natural  course 
of  things.  Suppose,  in  the  case,  the  ability  of  the  defendant  in 
another  direction  to  commit  the  rape  had  been  in  issue — that  he 
was  a  man  or  his  victim  a  woman ;  evidence  then,  if  needed, 
inifcht  have  gone  back  to  the  time  of  their  births  without  totich- 
inc;  any  question  of  discretion.  My  brother  does  not  venture 
this  case  out  on  the  first  point,  and  on  the  last  he  entire^'  mis- 
takes its  meaning.  Courts  have  no  discretion  in  admitth  r 
rejecting  legal  testimony.  In  middle  life  a  man's  strength  may 
be  well  shown  from  exertions  of  it  fifteen  or  twenty  years  back. 
It  would  not  do  to  go  so  far  back  on  those  made  by  a  boy  of 
twenty,  or  an  (dd  man  of  seventy-five.  In  either  case  they  would 
not  he  evidence.  And  this  is  about  all  there  is  of  discretion  on 
questions  of  evidence. 

When  the  scienter  or  quo  animo  becomes  an  essential  factor 
in  the  problem  of  guilt  or  innocence  to  be  solved,  when  proof  of 
malice  becomes  indispensable  to  a  conviction,  such  evidence  of 
other  like  acts  may  then  be  competent:  Wharton's  Crim.  Laws, 
tl49.  It  i.«*  8o  when  proof  of  the  motive  becomes  jieculiarly 
material  on  account  of  sotne  peculiarity  of  the  crime,  or  its 
dependence  <»n  some  peculiar  motive,  when  the  act  is  innocent  as 
a  ride,  ami  its  orimimility  the  exception.  Under  this  bead  we 
can  dispose  of  all  the  «*!iBe»  eited  on  the  other  side,  or  found  in 
the  ho(d<N.  of  forgery,  counterfeiting,  uttering  base  paper  or 
.ni  I.  ( nihczx.Iing,  obtaining  money  and  goods  under  false  ])re- 
tei  -.  >,  fnimlulently  conveying  or  pledging  property,  kidnaping 
hoys,  and  otJKT  fraudulent  transactions.  In  such  cases  the  intent 
is  alwavv  material  to  be  proven.  It  can  rarely,  if  ever,  be 
inferri'd,  beciiuse  the  act,  or  what  constitutes  that  part  of  the  crime, 
is  just  like  what  is  innocently  done  l»y  everybody  in  the  every-day 


^pppwp^ 


642 


AMERICAN  CRIMINAL  REPORTS. 


f «  K'< 


^ 


(< 


•i;! 


business  of  life.  Notes  and  oI)lijT:ation8  are  siirned  and  iiojioti. 
ated,  clerks  and  .agents  are  trusted  and  entrnstcd,  Itoys  liiicd.  with 
traffic  in  all  its  endless  raiiiificationa,  ninnijiir  in  debt,  failinn;  and 
running  away,  tight  places,  tein|)tations,  pride,  pinching  poverty 
with  money  in  all  hands,  hard  and  soft,  going  the  rounds  of  cir- 
culation, begetting  a  love  of  it,  the  root  of  all  evil,  and  givina 
occasion  or  motive  for  a  great  nnnd)er  of  offenses,  both  iiutlun 
m  se  et  malmn  prohibit  iiti,  known  to  modern  civilization  and 
law,  where  intention  of  wroiig-<loiiig  is  often  almost  tln'  only 
index  and  exponent  of  the  criminality.  In  these  cases  the  mind 
the  thing  is  done  with  is  the  cpiestion  of  (piestions :  and.  mind 
you,  tlie  act  is  proved,  or  not  cpiestioned.  TTeiice,  it  stainls  to  ita- 
son  that  the  intent  or  knowledge  this  act — innocent  or  indillcrcnt 
in  itself,  it  may  be — is  done  with  may  well  be  learned  from  other 
acts  of  the  same  kind,  done  under  the  direction  of  the  same 
mind.  Perhaj^s  the  rule  is  best  put  in  the  words  of  Lord  Mans- 
field :  "  When  an  act,  in  itself  indifferent,  becomes  criiniiial  if 
done  with  a  particular  intent,  then  the  intent  must  be  ])roved 
and  found ;  but  when  the  act  is  in  itself  unlawful,  tiie  jiroof  of 
justification  or  excuse  lies  on  the  defendant,  and  in  case  of  fail- 
ure thereof  the  law  implies  a  criminal  inti'ut." 

In  a  'iiunler  case,  cited  in  a  note  in  Roscoe's  Crim.  Ev.,  pac;e 
02,  as  Ifmllis  Cdw.  I  Ilarnson,  507,  evidence  was  held  compe- 
tent to  prove  that  the  accused,  on  the  same  day  the  deceased  was 
killed,  ami  shortly  before  the  killing,  sliot  a  third  person,  tlioufi;h 
it  proved  a  distinct  felony,  as  it  appeared  to  be  connected  witli 
the  crime  charged  as  a  part  of  the  same  transaction.  Not  boiiij; 
able  to  see  the  full  reported  case,  its  doctritie  as  digested  is  iidt 
verified.  Obviously  the  term  "distinct"  is  not  used  in  the  sense 
of  disconnected,  any  furtluT  tiian  to  nnirk  two  distinct  felonies. 
It  has  no  reference  to  a  separation  of  the  acts  constituting  the 
crimes;  they  were  connected  as  parts  of  one  transaction.  Hence 
the  case  comes  within  the  rule,  that  to  be  competent,  one  crime 
to  prove  the  other,  they  must  be  connected.  With  a  sliijht 
expansion,  and  perhaps  without,  this  case  seems  well  enough  to 
cover  the  chain  of  facts  so  closely  connected  together  in  Kim 
street  ind  in  my  brother's  fertile  brain,  extending  from  one  end 
of  it  to  the  other — meaning  the  street,  of  course — taken  in  "suc- 
cession," and  "all  in  one  night."  lietjinav.  6'fW>c«,  IJ  F.  and 
F.,  833,  is  exactly  in  point,  where,  on  a  trial  for  breaking  into  a 
booking  office  of  a  railway  station,  evidence  was  admitted  that 


IS' 


^mi 


STATE  V.  LAPAQE. 


643 


the  prisoner  had,  on  the  same  night,  broken  into  thiee  other 
booking  offices  of  other  stations,  "on  the  ground  of  the  four 
cases  heing  all  mixed  up  together." 

It  is  hardly  worth  while  for  mo  to  review  anv  inore  cases  cited 
by  counsel  for  prosecution.  Our  case  is  murder.  On  triid  it  is 
proposed  to  show  a  murder  committed  in  perpei  rating  or  attempt- 
ing to  perpeti-ate  rape.  Evidence  in  proof  of  iliat  cliarge  was 
offered,  tending  to  show  that,  four  years  and  more  bet'ore,  the 
defendant  committed  rape  without  murder  on  anotlior  jx  rsoii  in 
a  distant  country.  Weohjectcd.  Ohjectiun  overruled.  Evitk'iice 
admitted.  Jury  instructed  to  use  it  in  liiiding  intention  oiilv, 
and  thus  tiiiding  (k'gree  of  crime.  No  claim  is  made  that  the 
evidence  helps  to  liiid  intent,  only  in  so  far  forth  as  it  helps  to 
find  a  bent  of  mind  or  inclination  to  commit  tiiat  kind  of  erimes. 
We  say  no  such  help  is  legal,  whether  claimed  as  a  cpiestion  of 
logic,  law  or  diseretion.  No  case  has  been  cited  looking  our 
ohjectious  s(iuarely  in  the  face.  And  if  the  rule  of  evidence, 
sought  for  by  the  prosecution,  cannot  be  found  in  capital  cases, 
this  court  will  not  seek  far  for  guides  in  this  case  in  pat  lis  taken 
in  tracing  out  men's  ways  that  are  dark,  in  killing  horses,  hunt- 
ing partridges,  or  putting  money  in  the  purse. 

It  is  not  competent  to  show  that  one  has  a  tendency  to  com- 
mit crimes  like  the  one  he  is  charged  with  :  Sfnfe  v.  A'ctiton,  15 
N.  II.,  1  •>'•>■  It  is  not  proper  to  raise  a  |)resumj)tion  of  guilt  on 
the  ground  that,  having  committed  one  crime,  the  depravity  it 
exhibits  makes  it  likely  he  would  commit  another. 

Shafner  v.  Coinmonwcdlth,  72  Penn.,  fiO,  is  a  modern  case,  in 
a  strong  court,  well  considered,  and  almost  exactly  in  point. 
Case:  Shalfner  indicted  for  murder  of  wife  by  poison;  wife 
died  June,  1871;  evidence  to  show  death  from  ])oison ;  main 
question,  was  it  administered  by  husband;  evidence  of  im])roper 
intimacy  with  one  Susan  Sharlock ;  evidence  of  symptoms  of 
wife's  death  ;  evidence  olTered  that  a  lirst  wife,  who  died  in  Sep- 
tember, 18(59,  and  John  Sharlock,  Susan's  husbai\d,  who  died  in 
February,  1871,  both  died  at  the  defendant's  house,  with  similar 
symptoms  as  last  wife,  and  that  all  of  them  were  under  his  care 
at  the  time  they  died.  Evidence  as  to  first  wife  rejected  ;  as  to 
John  Sharlock  admitted ;  verdict,  guilty ;  motion  for  new  trial 
overruled ;  sentenced  to  be  hanged ;  writ  of  error  to  Supreme 
Court ;  new  trial  ordered,  because  of  admission  of  this  evidelice. 
Here  wo  have  two  cases,  and  others  might  be  cited — one  our  own 


'\t' 


a 


644 


AMERICAN  CRIMINAL  REPORTS 


':% 


.ft 


ift' 


KM 


■til 


"■       T 


and  some  time  back,  by  as  able  a  court  as  we  ever  had ;  the  other 
of  very  recent  date,  by  an  able  qonrt — fully  sustaining  the  whole 
ground  of  our  exceptions  now  under  consideration. 

No  well  read  lawyer  need  be  told  that  the  doctrine  of  these 
cases  is  the  doctrine  of  all  the  best  earlier  authorities.  Indeed, 
nntil  quite  recent  times,  it  was  so  far  removed  from  debatable 
ground  as  not  to  be  questioned.  We  may  differ  about  the  reason 
of  its  existence.  It  may  have  owed  its  birth  to  a  sacred  care  for 
human  life,  to  a  judicial  protest  against  sanguinary  legi.slation, 
or  to  a  conviction  that  disposition  of  mind,  even  when  use  lias 
bred  a  habit,  is  too  frail  a  premise  to  draw  inferences  from,  bear- 
ing on  issues  of  life  or  death.  Whatever  its  reason,  nobody 
doubts  it  existed.  And  we  ask  the  court  to  consider  wliotlier  or 
not  it  may  come  under  the  provision  of  the  constitution,  tliat 
"  all  the  laws  which  have  usually  been  practiced  on  in  tiie  courts 
of  laws,  shall  remain  and  be  in  full  force  until  altered  and 
repealed  by  the  legislature."  How  much  rules  of  evidence  may 
come  within  the  scope  of  this  provision,  perhaps,  has  never  been 
determined.  We  are  not  sure,  but  think  the  point  worth  con- 
sidering. Interest  in  the  result  of  a  cause,  as  a  bar  to  the  person 
testifying,  had  to  be  or  was  let  down  by  act  of  legislation. 

No  rule  of  law  is  better  settled  than  that  the  "  evidence  sliall 
be  c()iitiiu!(l  to  the  point  in  issue."  My  brf)ther  insists  on  it,  but 
likes  the  terms  "  ])ertinent  "  and  "  relevant "  better.  We  insist 
on  it,  an<l  do  not  care  al)out  the  terms.  It  makes  no  odds  that 
We  know  of  how  many  circujustantial  facts  are  put  in  evidence. 
What  the  rule  demands  is,  that  they  be  each  one  circumstantial — 
cimim  stana — standing  around,  each  one  to  be  proved  as  a  pri- 
mary premise,  not  as  an  inference  from  which  the  conclusion  or 
verdict  is  to  be  drawn.  "  Plucking  the  grass  to  know  where  sits 
the  wind  "  may  be  sensible  enough,  but  throwing  up  straws  to 
tell  which  way  it  will  blow  four  years  hence,  lacks  wit  as  well  as 
poetry.  It  is  of  the  nature  of  water  to  run  down  hill — it  has  a 
strong  tendency  that  way;  but  who  would  think  of  inferring 
hence  alone  tliat  a  given  water  had  run  down  a  given  hilN 
Making  no  point  of  remoteness  in  time  or  space,  let  us  see  how 
well  this  evidence  will  bear  analyzing.  Premise  to  be  proved : 
he  committed  a  rape,  in  no  way,  except  in  kind,  connected  with 
this  crime.  Inference :  a  general  disposition  to  commit  this  kind 
of  offense.  Next  premise:  this  general  disposition  in  iiini. 
Inference :  he  committed  this  particular  offense.     "  Presumptions 


STATE  V.  LAPAGE. 


545 


of  fact  are  in  truth  hut  mere  arguments."  Ilencc,  as  all  the  evi- 
dentiary aid  one  of  these  acts  fi;ets  from  the  other  is  through  this 
presumption  of  goiieral  disposition,  it  is  ])ut  mere  argujiioiit.  No 
mark,  except  the  class  mark  of  kind,  have  they  in  common. 
And  why  such  proof  has  not  heen  used  is  because  the  argument 
is  too  far-fetched — "too  thin" — iin  inference  from  a  ])resum])- 
tioii;  a  cliain  of  reasoning  of  two  or  three  links,  with  ample 
hilling-places  for  abundant  fallacies.  It  may  be  tried  "  by  the 
(Miianioii  test  of  the  validity  of  arguments."  Some  men  who  com- 
mit a  single  crime  have,  or  thereby  acquire,  a  tendency  to  commit 
tlic  saiiic  kind  of  crimes;  if  this  man  connnitted  the  rape,  he 
iiiiglit  therefore  have  or  thereby  acquire  a  tendency  to  commit 
other  nipes;  if  lu^  had  or  so  acquired  such  a  tendency,  and  if 
aiietlier  rape  was  committed  within  his  reach,  he  might  therefore 
lie  more  likely  to  l)e  guilty  ;  if  so  more  likely  to  be  guilty  of 
rape,  and  if  tliere  was  a  murder  committed  in  perpetrating  or 
attempting  to  perpetrate  rape,  he  might  therefore  be  more  likely 
to  be  guilty  of  this  rape,  and  hcnec!  of  this  murder;  a  sort  of  an 
expa/'f'!  (!onviction  of  a  single  rape,  from  which  the  jury  are  to 
find  a  general  disposition  to  that  kind  of  crimes,  in  order  to  help 
thuin  out  in  presuming  the  commission  of  iinotli(!r  rnpe  as  a 
motive  or  occasion  of  the  murder.  We  can  find  nothing  like  it 
in  the  books,  and  much  of  the  best  ability  in  the  profession  is  all 
np  in  arms  against  this  innovation. 

As  a  (piestion  of  logic,  then,  there  is  no  evidentiary  power  in 
tliis  testimony,  entitling  it  to  use  in  a  trial  of  this  kind.  As  a 
qiu'stion  of  law,  we  have  already  attempted  to  show  that,  if  it 
has  any  such  jiower,  it  canm^t  be  used  here.  And  now  we  say, 
if  there  be  any  (piestion  of  discretion  about  it,  it  ought  not  to  be 
used.  On  this  point,  the  reasoning  of  the  court  in  ShqfFner  v. 
Coiiiiiionireolth^  already  cited,  suggests  all  that  need  be  said. 
Rut  we  take  no  time  oji  this  point.  If  the  point  of  law  does  not 
pave  us,  we  cannot,  in  the  nature  of  the  case,  hope  much  from 
tliat  of  discretion.  Fn  fact  we  do  not  believe  much  in  questions 
(;f  discretion  when  a  man's  life  is  at  stake.  Tlanging  ought  not 
t(i  go  by  discretioJi.  It  is  our  cliiMit's  last  chance  for  his  life, 
lie  is  entitled  to  a  fair  trial  by  "due  process  of  law,"  even  if 
"his  complexion  be  perfect  gallows."  And  due  process  of  law 
floes  not  go  much  on  <liscretion.  All  the  light  the  jury  sees  his 
case  in  ought  to  be  pure  legal  testimony.  It  should  all  emanate 
from  the  elements  and  incidents  of  the  tragedy.  It  may  get 
Vol.   II.— ;J5 


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33  WIST  MAIN  STRUT 

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toned  or  shaded  in  transmission,  not  unlike  the  rays  of  sunlielit 
by  refraction,  but  wlien  it  passes  the  bench  to  the  panel  it  must 
be  free  fi-om  court  coloring  or  discretion. 

Murder  will  out.  Its  witnesses,  though  dumb,  will  speak.  If 
need  be,  the  voice  of  murdered  blood  will  cry  out  from  the 
ground.  Each  new  case  has  its  peculiar  horror.  Now  and  then 
"  a  devil,  a  born  devil,"  who,  "  like  the  shark  and  tiger,  must 
have  prey,"  will  run  a  terrible  race  in  crime  before  detection. 
But,  be  sure,  his  crimes  will  find  him  out.  Innocent  men  will 
sometimes  be  accused.  Even  ■'  the  most  gnilty  criminal  may  he 
innocent  of  other  offensos  charged  against  him,  of  which  he  might 
acquit  himself  if  fairly  tried."  "  He  may  be  guilty  of  them,  and 
still  innocent  of  the  one  with  which  he  stands  charged."  Ko 
one  can  tell  how  soon  he  may  be  the  victim  of  seeniing  adverse 
circumstances.  Such  things  have  been,  and  may  be  jigiiin.  And 
when  they  do  come,  a  wise  and  firm  administration  of  the  law, 
in  the  face  and  eyes  of  popular  indignation,  is  our  only  city  of 
refuge. 

Who  knows  the  jury  "found  the  homicide  committecl  by  the 
defendant,  on  other  evidence  than  that "  we  have  been  consider- 
ing? Is  it  so  said  by  a  general  verdict  of  gnilty?  It  is  not  so 
eaid  by  the  case  made  by  the  court  allowing  the  exceptions.  My 
brother  says  it  in  his  argument.  And  it  is  just  1  ere  that  our 
exceptions,  as  it  seems  to  me,  take  on  their  most  furmithible  prt)- 
portions.  Even  my  learned  brother,  after  years  of  eNiifrionce 
in  the  trial  of  criminal  cases,  gets  confused  and  misled,  or  moans 
to  misteiid,  as  to  the  use  made  of  this  testimony.  It  is  said  by 
the  court,  in  ShajPner  v.  Commonwealth:  "  Logically,  the  com- 
mission of  an  infli'|H'iid('iit  otfense  is  not  proof  of  itself  of  the 
commis-<ioJi  of  another  crime.  Yet  it  cannot  bo  sai<l  to  be  with- 
out infltience  on  the  mind,  for,  certainly,  if  one  bo  shown  to  be 
guilty  of  another  crime  equally  heinous,  it  will  prompt  a  more 
ready  belief  that  he  might  have  committed  the  oiu;  with  which 
he  is  charged  ;  it,  therefore,  pre<lisposeB  the  niind  of  the  juror 
to  b(dieve  the  prisoner  guilty."  It  tends  to  give  umliic  |irnmin- 
enco  and  force  and  weight  to  all  the  other  evidence  in  the  ciise 
for  the  prosecution.  It  detractts,  in  like  manner,  but  in  double 
portion,  from  all  the  evidence  in  his  defense.  It  prejudices  the 
jury  against  him,  and  incdines  tliem  to  look  with  suspicion  on  all 
who  come  forward  to  testify  in  his  fav(»r.  lionet',  it  is  "not 
only  unjust  to  the  prisoner  to  compel  him  to  ac(piit  himself  of 


if^SWP'WT 


STATE  V.  LAPAQE. 


547 


I 


two  offenses  instead  of  one,  but  it  is  detrimental  to  justice  to 
burden  a  ti-ial  with  multiplied  issues,  that  tend  to  confuse  and 
mislead  the  jury."  And  the  problem  for  "  human  reason  and 
human  experience"  to  solve,  in  view  of  this  "natural  law,"  is, 
not  what  rule  is  desirable  to  be  applied  in  a  given  eatie,  but  what 
one,  on  tne  whole,  is  wisest  and  best  to  be  applied  in  all  cases. 

Who  can  say  that  "no  injustice  has  been  done?"  We  have 
found  that  neither  tendency  to  crime,  evil  disposition,  nor  bad 
character  can  enter  the  lists  as  circumstantial  evidence :  1  Phil- 
hps'  Ev.  (7th  ed.),  181.  Even  admissions  made  of  a  similar 
crime,  and  of  a  tendency  of  mind  that  way,  cannot  be  compe- 
tent :  1  Chitty  Crim.  Law,  504.  Proof  that  the  accused  was 
influenced  by  a  strong  motive  of  interest  to  commit  the  offense 
charged,  ought  never  to  operate  in  proof  of  the  corpim  delicti: 
1  Stai'kie  Ev.,  490.  When  tendency  of  mind  is  excluded,  what 
vest  j^e  of  the  first  crime  is  left,  by  which  the  defendant  is  to  be 
traced  to  the  last  one?  Neither  mental  nor  moral  science  has  as 
yet  been  able  to  mark  out  a  path  by  metes  and  bounds,  nor  even 
to  blaze  a  trail,  by  which  this  border  land  of  probabilities  may 
safely  be  eyitered  in  legal  criminal  investigations. 

In  questions  of  character,  it  is  held  that  mere  proof  of  isolated 
facts  can  afford  no  presumption  :  1  Taylor's  Ev.,  sec.  326,  and 
if  not  of  character,  how  of  tendency  of  mind  or  disposition — a 
mere  element  of  character?  Crime  is  possible  of  everybody;  it 
is  probable  of  nobody.  We  might  cite  any  amount  of  authority 
against  inviting  juries,  much  more  sending  them,  out  on  voyages 
of  conjecture  and  speculation.  Investigating  possibilities  of 
crime  is  not  their  province,  and  this  testimony  touches  on  possi- 
bilities. "Seven  handred  pounds,  with  possibilities,  is  good 
gifts."  But  proof  of  a  single  crime,  years  agone,  with  possibili- 
ties alter,  is  bad  evidence. 

Aly  brother  says  "this  evidence  was  cumulative."  What  evi- 
dence he  means  we  are  not  quite  certain.  If  he  means  what  we 
have  been  talking  about  as  no  evidence,  then  his  notion  of  cumu- 
lating with  it,  or  on  it,  is,  in  our  estimation,  like  what  somebody — 
Tom  Hood,  is  it? — says  about  increasing,  cumulating,  a  wife's 
salary ;  it  was  nothing  before,  and  so  it  was  doubled.  If  it  has  no 
legal  status  in  court,  it  can  neither  cumulate  nor  be  cumulated. 
Here  there  can  be  no  distinction  between  its  relevancy  as  a  ques- 
tion of  law,  and  its  temporal  or  local  connection  as  a  question  of 
discretion. 


648 


AMERICAN  CRIMINAL  REPORTS. 


J^f.'.     , 


3 


1   t 


Nor  is  the  question  of  good  faith  in  putting  it  in  in  question. 
We  say  it  was  j)ut  in  by  the  counsel  for  the  prosecution  without 
any  iiKlication  to  tlie  court,'  the  jury,  tlie  respondent,  or  hiseonn- 
sel,  as  to  how  it  nii<i"ht  be  used.  No  such  indication  came  from 
the  court  till  all  the  evidence  in  the  case  was  closed,  aiul  this  evi- 
dence had  done  its  work.  We  make  no  point  of  good  or  bud 
faith  ;  we  merely  state  a  fact.  If  the  jury  found  the  duFciKlaul 
on  other  evidence  guilty  of  this  homi(!ide,  then  there  was  no 
need  of  any  more  evidence:  Coiiiinnnwcalth  v.  Wdtsfo^  5 
Cush..  30.5  ;  Comtaonwcalth  v.  Yoi'k.  0  Met.,  93,  and  cases  there 
cited  from  other  state  and  foreign  courts. 

We  are  not  driven  to  charge  bad  faith,  or  even  that  injustice 
was  done.     It  is  enough  that  it  may  have  been  done. 

In  Re(jina  v.  Oddy,  4  Cox  C.  C,  Lord  Campbell,  after  Hayinw 
"  The  law  of  England  does  not  allow  one  crime  to  be  jiroved  in 
order  to  raise  a  probability  that  another  crime  has  been  coiii- 
uiitted  by  the  perpetrator  of  the  first,"  adds  this  l(»gical  and 
comnu)n  sense  caution:  "Allowing  evidence  to  be  given  of  the 
uttering  of  other  ft)rged  notes  to  other  persons  has  g(jiie  to  great 
lengths,  and  1  should  be  unwilling  to  see  that  rule  applied  gen- 
erally in  the  atlministration  of  the  criminal  laws."  Prejudice  is 
a  wily  fellow  in  a  jury-box.  lie  had  full  license — carte  hlanche 
— with  this  testimony  for  a  long  time,  before  the  court  called 
him  to  any  account.  Hence  the  burden  is  on  the  other  side. 
Not  one  of  the  jnrors  can  tell  how  much  his  mind  was  confused 
or  misled.  Law  is  exceedingly  jealous  of  both  these  clouds  on 
reason  and  judgment;  but  the  testimony  was  in  there,  liable  to 
do  mischief,  and  that  is  enough  for  our  purpose. 

In  Ciilemim  v.  People,  55  N.  Y.,  00,  a  late  case,  it  is  said  hy 
the  court,  all  the  judges  concurring  on  this  point,  "  The  general 
nde  is  against  receiving  evidence  of  another  otfense,"  "iiowever 
persuasive  the  evidence  may  be  in  a  moral  point  of  view."  Same 
case  before  tiie  same  court  in  5«>  N.  Y'.,  .")5>I,  and  aflirined.  l']) 
again  in  r)S  N.  Y.,  AS") ;  general  doctrim;  reatlirmed,  where  the 
court  said,  "  Tlie  true  rule,  and  the  only  rule  that  can  1m'  sus- 
tained on  principle  is,  that  the  intendment  of  law  is  that  an  (>rror 
in  the  admission  of  evidence  is  prejuditrial  to  the  party  nhjcct- 
ing,  and  will  be  grouiul  for  reversiil  of  the  judgment,  unless 
the  intendment  is  (dearly  repidled  by  the  record.  The  error 
miist  ite  shdwn  coiKdusively  to  in;  innoxious." 

It  is  not  this  defendant  alone  who  is  on  trial  in  this  court.     If 


^mm^ 


STATK  V.  LAPAGE. 


549 


he  "  lias  received  no  actual  wrong,"  as  we  contend  he  has,  and  as 
tliere  is,  to  say  the  least,  a  chance  for,  in  piecing  up  the  detached 
fragments  of  evidence  in  his  case,  law  and  the  course  of  justice 
have  a  right  to  complain.  We  s})eak  now  for  the  integrity  of 
tlie  rules  of  evidence.  We  may  liave  monsters  of  crime  in  our 
day.  Old-fashioned  notions  may  not  he  quite  up  to  my  brother's 
anxiety  in  dealing  with  cases  of  modern  de])ravity.  He  seems 
still  haunted  by  the  ghost  of  one  subject  for  a  mad-house,  sent 
to  the  halter  on  his  own  confession.  And  has  he  himself  par- 
taken of  the  insane  root,  that  he  would  obliterate  the  line 
between  judges  and  juries,  and  let  men  be  tried  for  their  lives 
on  such  "grounds  of  natural  law,  natural  reason  and  human 
experience,"  as  any  twelve  men,  jiicked  by  chance  from  like 
chance  pickings  from  men  selected  without  reference  to  special 
aptness  or  training,  may  chance  to  adopt  in  a  jury-room?  Is  he 
prepared  to  denounce  any  rule  of  evidence,  deemed  wise  and 
salutary  hitherto,  as  arbitrary  and  irrational,  because  it  happens 
to  htand  in  the  way  of  a  conviction  of  a  man  whom,  in  his  zeal, 
he  has  come  to  regard  as  surely  guilty?  Your  honors  might  give 
gome  weight  to  the  ev.dence  on  the  question  of  interest,  if  cer- 
tain both  crimes  were  committed,  and  committed  by  the  same 
person. 

Hut  just  here,  the  "  teaching  of  history  and  universal  experi- 
ence, your  own  knowledge  of  human  nature,  and  the  authority 
of  an  inttiition  superior  to  all  artificial  reasoning,"  all  admonish 
you  not  to  trust  to  a  jury  evidence  of  a  fact  entirely  disconnected 
fr(»m  the  main  fact  and  not  made  certain,  from  which  to  draw 
such  inferences  as  their  whim  or  ca])rice  may  dictate  of  a  man 
who  has  been  followed  by  a  hue  and  cry  of  the  whole  conununity 
ever  since  the  detectives  first  thought  they  scented  his  track, 
crossing  the  trail  they  were  following  of  the  first  man  by  them 
heat  out  of  cover  in  hunting  for  the  author  of  this  terrible 
tragedy.  N(»  man  on  earth  would  be  willing  to  trust  his  life  to 
Buch  an  ordeal. 

In  the  next  ])lace,  we  will  make  short  work  of  the  rest  of  our 
bill  of  exceptions. 

It  need  hardly  be  said  that  what  has  been  considered  we  regard 
as  its  head  and  front.  In  justice  to  myself,  perhaps,  1  ought  to 
say  that  I  rely  but  little  on  any  of  the  rest. 

All  the  testimony  tending  to  prove  his  chasing  tlie  Watson 
j,'irl  we  regard  as  clearly  irrelevant,  on  the  ground  that  it  comes 


m 


660 


AMERICAN  CRIMINAL  REPORTS. 


' 


t 


to  nothing,  and,  therefore,  is  mischievous.  It  was  two  weeks 
before  the  murder ;  it  was  three  or  four  miles  away  from  the 
scene  of  it,  and  not  in  the  same  direction  from  his  residence;  it 
was  a  day,  and  the  same  time  of  day,  when  other  pco])le  were 
out  in  the  same  locality,  on  what  they,  no  doubt,  deemed  inno- 
cent pastimes.  At  least  two  other  men  are  shown  to  be  on  or 
near  the  same  road  at  the  same  times  and  places  when  and  where 
he  was  seen.  Nothing  bad  is  shown  of  him  but  haste  and  excite- 
ment. He  was  never  seen  near  the  girl  except  when  her  mother 
was  present. 

We  wish  to  make  this  general  remark  as  to  all  this  class  of  tes- 
timony. It  is  all  open  to  two  constructions.  None  of  it  of 
necessity  ])oints  to  anything.  Taken  against  a  man  suspected,  it 
becomes  suspicious;  without  extraneous  aid,  it  is  all  entirely 
indifferent.  But  what  was  submitted  in  a  former  brief  is  all  that 
need  be  said  on  this  point. 

We  make  no  api)eals;  we  crave  riglit  and  justice.  Give  ns  a 
fair  trial.  We  ex])ect  to  meet  all  the  evidence  properly  conneetiiii' 
us  with  this  horrid  crime.  Against  that  we  can  take  no  excep- 
tion. But  if  the  jury  were  improperly  influenced  in  their  tind- 
ings  by  incompetent  testimony, 

"—be  it  so  much 
As  maki's  it  Ilsht,  or  heavy,  In  tin-  siiliMtuuce 
Or  the  division  of  lli«  twenti-jlh  pari. 
Of  one  poorscrupli';" 

then  we  have  a  rit^ht  t<»  complain. 

Zetols  W.  Cldrk,  attorney     neral,  in  reply. 

For  all  the  legal  pur|>os(!s  oi"  this  case  the  charge  is  unexcep- 
tionable, because  there  is  no  question  before  this  court  in  regard 
to  its  correctness. 

The  testimony  of  Julienne  Ronsse.  I.  The  defendant  con- 
tends that  the  question  is  not  whether  this  evidence  is  achiiissilde 
for  any  purpose,  but  whether  there  is  any  purpose  for  wliicli  it 
is  not  admissilde,  and  that  the  judgment  should  be  reversed 
because  this  evidence  is  not  com])etent  to  show  that  he  killed  the 
deceased.  His  claim  is,  that  evidence  of  the  degree  (tf  ijiiilt 
ehould  be  excduded,  unless  it  tends  to  prove  every  other  part  of 
the  case;  that  evidence  tending  to  show  a  homicide,  "eomniitted 
in  perpetrating  or  attemjiting  to  perpetrate  arson,  rape,  robbery, 
or  burglary,"  is  incompetent,  iinli'ss  it  also  tentls  to  show  that 
the  defendant  is  the  murderer;  that  when  a  murder  is  eomniittod 
in  the  perpetration  of  arson,  robbery,  or  Imiglary,  evidence  of  a 


STATE  V.  LAPAQE. 


551 


fire  set,  a  pocket-book  left  open  and  empty  in  the  higliway,  or  a 
door  or  lock  broken,  is  inadmissible  if  it  does  not  bear  npon 
every  question  into  which  the  general  issue  may  by  ingenuity  be 
divided ;  in  short,  that  no  evidence  is  admissible  on  any  point 
unless  it  tends  to  prove  every  other  point.  I  do  not  think  I 
should  be  justified  in  occupying  the  time  of  the  court  with  any 
answer  to  this  part  of  the  defen.lant's  argument. 

II.  The  defendant  contendt  that  the  evidence  was  inadtnis- 
eible,  because  no  actual  proof  of  a  raping  intent  was  made  essen- 
tial by  any  allegations  or  answer  in  pleading  or  proof ;  that  the 
act  of  killing  being  fixed  upon  the  defendant,  his  crime,  without 
other  proof  of  intent,  would  be  murder  of  the  first  degree. 
Under  the  decision  in  State  v.  Pike,  49  N.  H.,  399,  404,  405, 
406,  it  was  not  necessary  to  allege  in  this  indictment  the  defend- 
ant's perjietration  of,  or  attempt  to  perpetrate  a  rape.  But,  in 
order  to  convict  the  defendant  of  murder  in  the  first  degree,  it 
was  as  r"'essary  for  the  state  to  prove  that  degree  of  murder  as 
if  it  had  been  necessary  to  allege  it  in  the  terms  in  which  it  is 
described  in  the  statute.  The  first  degree  is  no  more  presumed 
without  proof  of  it,  than  a  lower  degree  or  a  mere  hon)icide 
without  proof  of  it:  State  v.  Bartlett,  43  N.  IT.,  224;  State  v. 
Joues,  50  N.  H.,  309 ;  State  v.  Hodge,  50  N.  II.,  510,  525,  526. 
The  English  pre8Uini)tion  (accepted  by  the  majority  of  the  court 
in  Com.  v.  York),  that  all  homicide  is  malicious,  is  an  error  of 
old  barbarous  or  semi-barbarous  times  not  adopted  here. 

"  Homicide  may  be  lawful.  It  is  Avell  known  to  be  so  in  many 
cases.  In  many  more  it  is  excusable  or  capable  of  extenuaticm ; 
and  if  it  may  be  so,  if  it  often  is  so,  whence  the  reason,  where 
the  justice,  of  attachiiig  to  that  which  may  be  lawful  an  infer- 
ence of  law  that  it  is  unlawful,  and  not  only  unlawful,  but  unlaw- 
ful in  the  highest  degree — or  murder?  Why  does  not  the  pre- 
sumption of  innocence  attach  as  much  to  the  motive,  the  intent 
with  which  an  act  is  done,  as  to  the  act  itself?  Iimocence  means 
innocent  of  any  unlawful  act,  as  well  as  of  any  act  at  all.  If  the 
burden  of  proving  the  act  itself  is  on  the  government  through- 
out, is  there  not  the  same  burden  of  proving  the  malicious 
intent?  It  is  an  evasion  of  the  point  to  say  that  the  latter  is 
proved,  because  it  is  by  law  int'en-ed  from  the  wrongful  act 
itself.  That  assumes  the  very  (piestion  in  dispute.  Was  the 
homicide  unlawful?  The  government  asserts  it;  the  accused 
denies  it.     The  principle  that  malice  is  to  be  legally  inferred 


IT-   s 


552 


AMERICAN  CRIMINAL  REPORTS. 


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from  the  eommissioii  of  a  'wrongful  act  done  intcMitionally 
without  just  cause  or  excuse,'  does  not  lielp  us  in  the  solution  of 
the  question.  Tlie  questions  still  remain,  Was  the  honiieide 
wrongful  ?  Was  it  intentional  or  accidental  ?  Was  it  done  with- 
out just  cause  or  excuse  ?  In  other  cases,  criminal  malice  is  not 
always  implied  from  the  commission  of  a  wrongful  act.  In 
many  states  it  is  made  a  crime  maliciously  to  destroy  or  injure 
another's  personal  property ;  yet  it  is  perfectly  well  settled  that 
such  an  offense  is  not  made  out  by  simple  proof  of  a  volinitiiry 
and  wrongful  injury  to,  or  destruction  of  such  property.  There 
must  be  proof  of  actual  malice :"  1  Bennett  and  Heard  L.  C.  C, 
361  (2d  ed.) 

A  legal  presumption,  that  all  homicides  are  malicious,  could 
be  based  on  nothing  but  the  fact  that  homicides  are  gciu'nilly 
malicious.  But  the  fact  is  that  not  one  in  a  thousand  is  iiuili- 
cious  in  a  legal  sense,  i.  «.,  criminally  malicious.  Co!n]iaro  all 
the  murders  of  Europe  during  the  last  hundred  years  with  the 
number  of  deaths  caused  by  the  lawful  orders  of  the  first  Napo- 
leon. How  long  a  time  would  be  necessarj'^  to  find  as  many  per- 
sons murdered  in  this  country  as  were  lawfully  slain  in  Virginia 
in  1804?  AVar  is  not  an  exception.  We  are  at  war  now.  and 
have  been  nearly  all  the  time  since  the  first  settleniotit  of  the 
country.  War  is,  or  is  in  law  presumed  to  be,  nothing  but  self- 
defense — a  defense  of  rights  which  men  may  legally  defend. 
Whether  the  right  of  defense  be  exercised  by  an  organized  com- 
munity or  by  a  single  member  of  it;  whether  military  powers 
join  battle,  or  sheriffs  inflict  capital  punishment,  or  rioters  are 
shot,  or  other  persons  resisting  authority  are  killed,  or  individ- 
uals take  life  for  the  prevention  of  atrocious  crimes  which  can- 
not otherwise  be  prevented ;  whether  homicide  is  committed 
under  unavoidable  necessity  in  the  defense  of  private  rights  or 
the  advancement  of  pub'ic  justice — the  principle  is  the  same. 
And  when  so  small  a  portion  of  homicides  is  unlawful,  what 
ground  is  there  for  presuming  them  all  unlawful  ? 

Leave  the  military  and  the  ofHcial  destruction  of  life  out  of 
the  account,  and  consider  only  private  homicides.  Many  of  them 
are  so  clearly  lawful  that  they  are  never  brought  to  the  notice  of 
a  grand  jury.  And,  when  indictments  are  found,  in  how  small 
a  portion  are  there  convictions  of  murder  in  the  second  dcgno; 
and  how  much  smaller  a  portion  are  adjudged  to  be  of  the  first 
degree.     Vice  and  villainy  of  all  kinds  and  degrees  abound  ;  but 


STATi:  c.  LAPAGE. 


553 


entionally 
•ohition  of 

homicide 
;lone  with- 
lico  is  not 
il  act.    In 

or  injure 
ettlod  that 

vohintary 
[y.  Tiiere 
•d  L.  C.  C, 

ions,  could 
u  jiciuTiilly 
iTid  is  niali- 
o'lipare  all 
rs  with  the 
tirst  Napo- 
i  many  per- 
in  Virginia 
ir  now,  and 
loiit  of  tlie 
<f  but  eelf- 
Uy  defend, 
mi  zed  com- 
iiry  powers 
rioters  are 
or  individ- 
which  can- 
committed 
e  riii;lit8  or 
J  the  same, 
wful,  what 

life  out  of 
my  of  tlicin 
le  notice  of 
low  small 
»tid  dc^Tce; 
of  the  first 
hound ;  but 


a  legal  prefsumption  that  all  homicide  is  capital  crime  woidd 
be  a  gross  violation  of  truth.,  and  a  cruel  oppression  of  the 
accused. 

Our  juries  are  always  instructed  that  they  cannot  find  the 
defendant  guilty  of  the  first  degree  of  murder,  unless  they  are 
satisfied  by  the  evidence,  beyond  all  reasoiiable  doubt,  that  the 
defendant  killed  the  deceased  "  by  poison,  starving,  torture,  or 
other  deliberate  and  premeditated  killing,  or  in  perpetrating  or 
attempting  to  perpetrate  arson,  rape,  robbery  or  bvrglary."     In 
this  case  the  state  undei'ook  to  comply  with  that  requirement, 
in  the  first  place,  by  proving  by  other  evidence  than  that  of 
Julienne  Rousse  that  the  defendant  assaulted  and   killed  the 
deceased  ;  and,  in  the  second  place,  by  proving  by  a  variety  of 
evidence,   including  that  of  Julienne  Rousse,   that  his  assault 
upon  the  deceased  was  made  with  a  raping  intent.     The  defend- 
ant objects  to  evidence  as  unnecessary  which  tends  to  prove  one 
(if  the  intents  necessary  to  the  first  degree.     On  the  question  of 
degree,  the  court  tell  the  jury  that  the  burden  of  proof  is  on  the 
state,  and  they  must  be  satisfied  by  the  evidence  beyond  a  reason- 
al)le  doubt ;  the  defendant  asks  that  the  verdict  be  set  aside, 
because  evidence  was  admitted  to  prove  that  point  without  proof 
of  which  his  execution  would  be  a  judicial  murder.     The  exclu- 
sion of  evidence  of  intent  would  be  the  repeal  of  an  elementary 
princii>lc,  and  the  sacrifice  of  a  vital  right  of  every  person  on 
trial  for  his  life.     From  seeking  such  a  subversion  of  law  and 
justice,  a  convict  is  not  deterred  by  its  shocking  inhumanity. 

III.  The  defendant  proposes  the  introduction  of  a  distinction 
i)etwecn  "a  mere  incident"  and  "an  element  or  the  burden  of 
the  evidence."  Such  an  amendment  of  the  law  would  be  an 
exceedingly  attimuated  refinement  of  legal  language,  and  a  per- 
version of  legal  principle.  Proof  of  intent,  motive,  malice,  or 
any  mental  condition,  is  competent  wlieu  the  intent,  motive, 
malice,  or  mental  condition,  is  a  fact  material  in  the  case ;  and 
when  such  a  fact  is  nuiterial.  the  proposed  distinction  between 
incident  and  element  is  immaterial. 

IV.  Tbe  defendant  admits  (what  no  lawyer  would  think  of 
denying)  that  when  the  '''quo  anlvio  becomes  an  essential  factor 
ill  the  i)robIein  of  guilt  or  innocence  to  be  solved,"  "such  evi- 
dence of  otiier  like  acts  may  bo  (iompetent."  "What  fact  in  this 
case  is  a  more  "essential  faetor."  a  more  relevant  and  material 
fact,  than  the  (whinin.  tlie  intent,  with   which  the  defendant 


554 


AMERICAN  CRIMINAL  REPORTS. 


It         > 


\\   !V'f> 


l\ 


assaulted  the  deceased  ?  At  the  trial,  the  question  of  that  intent 
was  for  him  an  issne  of  life  or  death ;  and  so  it  is  now,  and  will 
be  while  this  case  remains  in  the  hands  of  a  human  trihunal. 
His  life  depends  on  tliat  intent.  And  in  what  sense  would  lan- 
gnage  be  used,  if  it  were  said  that  a  fact  upon  wliicli  the  law 
makes  his  lite  depend  is  imuiaterial.  His  intent  is  as  niatcrial  as 
his  life,  which  is  the  only  thing  against  which  the  judgment 
runs,  and  against  which  the  judgment  would  not  run  if  the 
intent  had  not  been  proved  at  the  trial. 

In  a  great  number  of  the  decided  cases  in  which  evidence  of 
the  intent  with  which  other  similar  acts  were  committed  haa 
been  held  competent,  the  defendant  claims  the  intent  was  "pecu- 
liarly material."  "  In  such  cases,"  he  says,  "  the  intent  is  always 
material  to  be  proven."  Intent  is  either  material  or  immaterial ; 
and  its  materiality  is  a  legal  question.  But,  in  admitting  and 
rejecting  evidence,  tlu;  law  does  not  proceed  upon  a  distinction 
between  evidence  tliat  is  and  evidence  that  is  not  "  peculiarly 
material."  And  if  there  were  a  rule  of  evidence  based  on  such 
an  indeterminate  distinction,  what  would  be  more  "peculiarly 
material "  in  the  defendant's  case  than  an  intent  which  is  decisive 
of  the  question  whether  he  shall  live  or  die? 

The  defendant  admits  that  when  the  criminality  of  an  act 
dejiends  upon  the  intent  with  which  the  act  is  done,  the  intent 
"  may  well  be  learned  from  other  acts  of  the  same  kind."  Homi' 
cide  may  be  lawful :  it  may  be  unlawful ;  it  may  be  a  crime;  it 
may  be  a  moral  and  legal  duty.  Its  character  depends  upon  the 
oceasidu,  the  circumstances,  and  the  intent.  Of  itself,  it  is  as 
indifferent  as  any  other  act  the  guilt  of  which  consists  in  intent: 
4  Bl.  Com.,  l7(i-lSS.  If  the  defendant  killed  the  deceased  acci- 
dentally, and  without  fault,  he  is  innocent.  If  he  killed  her  in 
the  necessary  defense  of  his  child,  his  act  was  merit* »riou8.  Hia 
raping  intent  may  be  ])roved,  because  it  is  material.  It  nmst  be 
proved  in  order  to  convict  him  of  a  ('a])ital  crime.  If  it  had  not 
been  proved,  I  should  have  moved  to  set  aside  the  verdict  as  a 
murderous  mistake. 

V.  The  defendant  says:  "Courts  h.ave  no  discretion  in  admit- 
ting or  rejecting  legal  testimony,"  and  "  hanging  ought  not  to 
go  by  discu-etion.'"  In  the  bill  of  exceptions,  the  court,  transfer- 
ring "all  questions  as  to  the  exercise  of  discretion,"  evidently 
used  the  word  "discretion"  in  the  technical  sense  in  which  it  is 
used  in   legal  decisions  and  arguments.     Judicial  discretion  is 


1-       H 


STATE  V.  LAPAGB. 


655 


that  intent 
',  and  will 

I  tribunal, 
would  lan- 
li  the  law 
niiitcrial  as 

judgment 
run  if  the 

vidence  of 
mitted  has 
was  "  pecu- 
it  is  always 
mmaterial ; 
litting  and 

distinction 
'  peculiarly 
icd  on  euch 
'peculiarly 

is  decisive 

^  of  an  act 
,  the  intent 
i"  Homi- 
a  crime ;  it 
[Is  upon  the 
I'lf.  it  is  as 
s  in  intent: 
iceasod  acci- 

II  led  her  in 
>riouH.    His 

It  must  be 
f  it  had  not 
verdict  as  a 

^n  in  admit- 
ught  not  to 
irt,  transfer- 
,"  evidently 
1  which  it  is 
jiscretioQ  is 


"the  exercise  of  final  judgment  bv  the  court  in  the  dcriHion  of 
such  questions  of  fact  as,  from  their  nature  and  tln!  circiimstjitK-es 
of  the  case,  come  peculiarly  within  the  province  of  tin;  presidiiHr 
judge  to  determine:"  IhityJij  r.  //y^A;,  no  N.  If.,  IKI,  12^ 
"Judicial  discretion,  in  its  technical,  Icgnl  scriHc,  is  tlics  niim(!  (»f 
the  decision  of  certain  (puistioiis  of  fact  by  tlu;  (;oiirt :"  J}aiihig 
V.  WfiHhnoreland,  52  N.  II.,  4(»l,  4os.  "  N„  doubt  tiicn!  would 
be  s(»me  limits  as  to  time  and  circumstiinccH  beyond  which  (!vi- 
dcnce  of  uttering  forged  instrumentK  on  otlujr  occiihions  would 
nut  be  permitted.  What  these  limits  are.  it  is  f(»r  the  judge  in' 
his  discretion  to  determine :"  Roscoe  CJrim.  Kv.,  i>r)  (Tth  (.().) 
"In  regard  to  the  distance  of  time  (or  place)  between  the;  ))rin- 
cipal  fact  in  issue  and  the  coIlat(!ral  facts  proponed  to  be  nhown 
in  proof  of  the  intention,  so  far  as  it  alfec'ts  tlm  adiriissibility  of 
the  evide.ice  no  precise  rule  has  been  laid  dowti.  but  the  question 
rests  in  the  dif^crction  of  the  judge:"  3  Gr.  Kv,,  sec.  15,  and 
authorities  cited  in  my  former  brief. 

VI.  The  competency  of  evidence  of  intent  is  not  aflVcted  by 
the  distinction  between  olTenses  that  are  and  th(»K(!  that  an;  not 
capital.  When  there  were  one  hundred  and  si.xty  capital  crimes, 
the  (piestion  was  not  what  offenses  were,  but  what  were  not  capi- 
tal. Passing  counterfeit  money  (third  ofTense),  trilling  eudiez- 
zlcMicnts  by  servants,  insignificant  thefts,  and  a  great  variety  of 
petty  delinquencies,  as  well  as  forgery,  arson,  robbc-ry,  burglary, 
etc.,  were  punished  by  death:  1  Montague  on  I'utdHliinent,  82. 
The  legislative  riMlnction  of  the  pisnalty  is  no  reiison  for  a 
judicial  alteratioji  of  tlu^  rules  of  evidence  increasing  the  diffi- 
culty of  proving  the  criminal  intent. 

VII.  In  Shqfnt'r  v.  Con).,  72  P(!nn.  St.,  fiO  (a  case  upon  which 
the  dtifendant  relies),  the  judgment  Wiw  reversed  on  the  ground 
that  the  evidence  of  the  defendant's  having  |»oiHon(!il  Sharlock 
was  received  as  evidence  that  he  poisonccl  his  own  wife  Nancy. 
"In  substance,"  say  the  court,  "this  was  an  olTcr  to  show  that 
the  prisoner  poisoned  Sharlock,  as  evidence  thiit  he  also  poisoned 
his  own  wife."  It  was  held  that  there!  was  no  evidc^nco  of  the 
defendant's  previous  purpose  to  marry  Sliiirlncl<'<  wife  Susan. 
The  court  say,  "The  j)reviou8  purpose  t(»  marry  Susan  is  the 
broken  link  in  the  chain  to  complete  the  coniufclioii,  without 
which  the  deaths  of  both  are  not  so  i)robably  connected  as  to 
make  Sharlock's  death  evidence  on  the  trial  for  the  death  of 
Nancy."     If  that  decision  were  in  point  in  this  case,  1  should 


i 

1..:  [ 


556 


AMERICAN  CRIMINAL  REPORTS. 


{  ^ 


m 


,.j. 


insist  that  the  adulterous  intercourse  between  the  defendant  and 
Susan,  and  Sharlock's  life  insurance  money,  obtained  by  tlie 
defendant,  left  no  such  broken  link ;  and  that  the  decision  was 
reached  by  weighing  the  evidence  and  drawing  an  inference  of 
fact  which  could  not  be  drawn  by  a  court  of  law  passing  iijiou 
the  legal  question.  But  that  decision  has  no  bearing  on  the  com- 
petency of  proof  of  intent.  T'le  only  question  considered  in 
relation  to  the  competency  of  evidence  was,  whetlier  tiie  act  of 
poisoning  Sharlock  tended  to  prove  the  act  of  poisoning  Xancv. 
The  jury  were  instructed  that  "if  the  prisoner  is  guilty  at  all. 
there  can  be  no  difficulty  in  ascertaining  the  degree  of  gnilr.  lor. 
being  by  poison,  it  must  necessarily  be  murder  of  the  first  di^rce. 
if  purposely  administered;"  and  that  instruction  was  lield  vhjht. 
The  reversal  of  the  judgment  was  based  on  a  sup})osed  lirokcn 
link  in  the  chain  necessary  to  the  inference  of  one  act  tiom 
another,  and  not  on  a  violation  of  the  rule  tliat  allows  the  intent 
of  one  act  to  be  inferred  from  tlie  intent  of  a  similar  distinct  act: 
a  rule  wliich  the  court,  in  Stiffs'  r.  AVutoti,  15  N.  II.,  lO'.t,  175, 
ex]>i'('ssly  declared  they  did  not  iniVinge. 

VIII.  When  the  defendant  says,  "No  claim  is  made  tliat  the 
evidence  helps  to  find  intent  only  in  so  far  fortli  as  it  helps  to 
find  a  bent  of  mind  or  inclination  to  commit  that  kind  of  crimes," 
he  misai)prehend6  the  arguuieiit  which  1  endeavored  to  present 
in  my  former  brief.  The  state  claims  that  it  is  settled  i)y  all 
the  authorities,  and  admitted  by  the  defendant,  that  when  the 
intent  with  which  the  defendant's  act  was  done,  or  the  intent 
with  which  he  had  possession  of  a  person  or  thing,  is  a  material 
part  of  a  crime  charged  against  him.  evidence  is  adnii.-silik-  to 
show  the  intent  of  his  acts  on  other  occasions.  The  state  claims 
that  a  raping  intent  is  a  nniterial  part  of  the  crime  charged 
against  this  defendant;  that,  under  the  circumstancc.s  of  thip 
case,  without  proof  of  such  an  intent,  he  coidd  not  he  and  ought 
not  to  be  convicted  of  the;  tirst  ilegree  of  murder;  and  that, 
under  the  specilic  instructions  given  by  the  court,  the  jury  fuuiul, 
on  other  evidence  than  that  of  Julienne  llousse,  that  the  defend- 
ant killed  Josie  Langmaid.  With  that  verdict,  the  I'lcts  stated 
in  the  bill  of  exceptions  show  that  he  killed  her.  not  by  poison 
or  starving,  but  by  seizing  her,  taking  possession  of  her,  and 
making  an  assault  u|)om  her,  and  the  state  claims  that,  as  niattur 
of  law,  the  intent  with  which  he  seizcil,  took  ])ossessi;»n  of,  and 
assaulted  other  young  women,  is  evidence  of  the  intcsnt  with 


STATE  t.  LAP.VGE. 


557 


which  he  seized,  took  possession  of,  and  assaulted  this  victim. 
Whether  the  fjict  that  lie  assaulted,  killed,  or  had  sexual  inter- 
course with  others,  is  evidence  that  he  committed  a  like  act  upon 
the  deceased,  is  not  a  question  hore.  For  the  pni-poscs  of  this 
case,  let  it  be  as  well  settled  as  the  defendant  may  have  reason  to 
wish,  that  the  fact  of  his  having  committed  a  certain  act  upon 
others,  and  his  general  disposition  to  commit  sucli  an  act,  are  not 
legal  evidence  that  he  committed  a  similar  act  upon  the  deceased. 
It  is  equally  well  settled  that  his  intent,  in  one  act  or  ])ossession, 
is  evidence  of  his  intent  in  anuthei  -limilar  act  or  possession. 
The  defendant  admits  that  the  law  is  so  wlien  the  intent  is  pecu- 
liarly material.  And  if  his  intent,  in  tliis  ease,  is  not  peculiarly 
material,  there  is  no  imaginable  case  in  w-hieh  it  would  be. 
Mere  intent  to  kill  is  not  criminal,  and  when  a  homicidal  intent 
acquires  a  crimiinil  character  from  the  occasion,  the  circumstances 
or  the  motive,  it  does  not  carry  homicide  to  the  highest  degree 
of  guilt,  except  in  the  few  cases  specified  in  the  statute.  The 
defendant's  intent  to  kill  the  deceased  is  not  the  gist  of  the  capi- 
tal offense  of  which  he  has  been  convicted.  His  raping  intent 
is  the  fatal  fact.  To  be  fatal,  it  must  be  proved.  The  methods 
of  proving  it  are  prescribed  by  the  general  rules  relating  to 
intent,  and  not  l)y  those  relating  to  acts. 

There  is  no  inconsistency  when  the  law  admits  the  special  and 
peculiar  intent  of  other  similar  acts  of  the  defendant  on  other 
occasions  as  evidence  of  his  intent  in  the  act  in  question,  imd 
does  not  admit  such  other  acts  as  evidence  of  the  allcired  act. 
In  the  former  case,  it  may  fairly  be  inferred  tliat  his  similar  acts 
on  dilTerent  occasions  were  done  with  like  intent,  though  without 
any  unity  or  continuity  of  ])lot.  In  the  latter  case,  it  would  be 
a  very  different  thing  to  infer  an  act  on  one  occasion  from  his 
commission  of  similar  acts  on  other  occasions,  without  anything 
to  show  that  they  all  came  within  one  settled  plan  and  fixed  pur- 
jtose.  If  a  child — yours  or  mine — should  mysteriously  disappear, 
we  miirht  not  think  that  the  al)duction  of  Charlie  Ross  tended 
to  show  tluit  both  children  had  been  taken  by  the  same  person. 
r>ut  if  the  kidnaper  of  the  Ross  boy  were  proved  to  have  taken 
yours  or  mine,  and  the  (jucstion  were  with  what  intent  he  made 
the  seizure,  would  anybody  doubt  tliat  his  proved  intent  to 
extort  a  ransom  from  ^Ir.  Itoss  tuiidcd  to  show  an  intent  to  rob 
you  or  me  in  the  same  manner  if  AVluit  dill'erence  is  there  in  the 
principles  of  evidence  aj)}>licable  to  suc^h  cases,  whether  the  vie- 


558 


AMERICAN  CRIMINAL  REPORTS. 


nU" 


!  I     I 
''ill 

'-)    •  I 


.3»4 


I 


tims  are  of  one  sex  or  the  otlier,  whether  the  alleged  intent  of 
the  brigand  is  to  make  money  by  extorting  ransoms  from  parents 
or  by  sending  captives  into  slavery,  as  in  Co7n.  v.  Turner,  or  to 
gratify  some  other  passion  than  avarice,  as  in  this  case  and  in 
iState  V.  Eoans  f 

The  intent  of  one  act  may  be  inferred  from  the  intent  of 
other  similar  acts,  though  the  one  act  may  not  be  inferred  from 
the  others.  If  it  be  said  that  the  legal  difference  between  such 
inferences  is  a  mere  difference  in  their  strength,  my  answer  is 
that  the  law  permits  the  stronger  of  the  two,  and  does  not  per- 
mit the  other  to  be  drawn,  and  that  my  business  here  is  to  con- 
tend for  the  1ft  »v  as  it  is,  and  not  to  argue  the  question  whether 
the  law  ought  to  be  so  changed  as  to  tolerate  both  inferenoes  or 
prohibit  both. 

The  rule,  which  (with  various  qualifications  and  exceptions) 
forbids  one  act  to  be  inferred  from  other  similar  acts,  or  (what 
is  the  same  thing)  f  rt>m  a  general  disposition,  inclination  or  ten- 
dency to  conimit  such  acts,  is  found  only  in  that  sniall  part  of 
the  world  where  the  common  law  prevails.  As  suggested  in 
Darling  v.  Westmoreland,  pp.  407,  408,  tliis  pcciiliiiiity  of 
English  law  may  have  been  a  piece  of  judicial  legislation  in 
mitigation  of  the  undiscriminating  and  merciless  severity  of  a 
criminal  code  of  one  hundred  and  sixty  capital  (tU'eiises.  But  I 
do  not  invite  the  court  to  investigate  tlie  origin  of  that  rule;  I 
do  not  argue  that  the  reason  of  it  has  ceased,  and  that  it  is  not 
adapted  to  a  criminal  code  of  a  solitary  capital  offense;  I  do  not 
jisk  the  court  to  reject  it  on  that  or  any  other  grouiul ;  but  I  do 
insist  that,  in  our  iiuinano  code,  in  the  increase  of  crime,  tlie 
new  perils  of  the  dei'enseless,  the  panic  of  parents,  and  the  termr 
that  reigns  in  many  otlier  places  as  well  as  on  aeadeiiiy  roads,  in 
the  cuii^-tant  obstruction  and  frequent  defeat  of  justice  by  mis- 
taken pity,  sentimental  inlluences,  the  general  relaxation  of  prin- 
ciple, demoralization  of  society  and  decay  of  government,  there 
is  nothing  that  can  induce  the  court  to  wish  they  had  the  power 
to  change  the  law  by  excluding  the  defendant's  intent  in  one  act  on 
the  question  of  his  intent  in  another  similar  act.  How  fearfully 
such  a  change  would  cripple  the  arm  of  justice,  and  endanger 
private  rights  of  person,  re])utation  and  property,  they  who  have 
been  engaged  in  the  administration  of  the  criminal  law  well 
know.  We  need  all  the  just,  reasonable  and  efKcient  means  now 
available  for  detecting,  convicting  and  punishing  the  lawless,  and 


STATE  V.  LAPAGE. 


669 


d  intent  of 
om  parents 
rner,  or  to 
jase  and  in 

;  intent  of 
erred  from 
tween  such 
'  answer  is, 
)e8  not  per- 
e  is  to  con- 
on  whether 
ferennes  or 

exceptions) 
ts,  or  (what 
tion  or  ten- 
nail  part  of 
ii,tr,ii;osted  in 

uliai'ify  of 
^ishition  in 
L'verity  of  a 
ses.  But  I 
hat  rule;  I 
at  it  is  not 
!e ;  I  do  not 
d  ;  but  I  do 
f  criniL".  the 
(1  the  turrur 
iiy  roads,  in 
tice  by  nii&- 
tion  of  prin- 
miciit,  there 
[i  the  power 
in  one  act  on 
ow  fearfully 
id  endanger 
.'y  who  have 
lul  law  well 
[  means  now 

lawless,  and 


restraining  the  elements  of  society  that  are  hostile  to  its  welfare. 
No  competent  evidence  can  be  spared.  An  inference  as  to  the 
defendeiit's  intent  in  one  act,  may  be  drawn  from  his  intent  in 
other  similar  acts.  That  rule  cannot  be  safely  annulled.  I  con- 
tend for  it,  as  law,  imperatively  required  by  reason  and  justice, 
indisputably  established  by  the  authorities,  and  explicitly 
admitted  by  the  defendant,  and  I  anxiously  hope  that  my  succes- 
Bors  may  not  be  disabled  in  the  performance  of  their  duties  by 
the  abolition  of  a  rule  so  necessary  for  the  protection  of  the 
community. 

Gushing,  C.  J.  The  testimony  of  Fowler,  Maliair,  the 
Towles,  tbeWatsons  and  Mercy  was,  I  think,  properly  adniittcid. 
It  all  tended  to  show  that  the  prisoner,  about  the  time  of  the 
murder,  was  frequetiting  that  neighborhood  with  a  view  to  the 
commission  of  the  crime  of  rape  upon  the  person  of  some  one 
of  the  young  females  whom  he  knew  to  have  occasion  to  pass 
over  that  road.  The  obscene  and  filthy  language  he  is  described 
as  using,  in  connection  with  his  inquiries  about  one  of  the  young 
ladies,  tends  to  show  what  thoughts  were  in  his  mind,  and  what 
he  was  meditating.  The  testimony  of  the  Watsons  and  Mercy 
tends  to  show,  not  merely  an  attempt  or  design  to  connnit  the 
crime  on  the  person  of  Miss  Watson,  but  also  to  show  tienerally, 
in  connection  with  the  other  testimony,  that  he  was  prowling 
about  that  place  for  the  purpose  of  lying  in  wait  for  any  per- 
son whom  he  might  sacrifice  to  his  base  and  cruel  designs.  It 
furnishes  an  illustration  of  the  doctrine  which  I  shall  attempt  to 
illustrate  and  maintain.  The  attempt  to  commit  one  oifense 
may  be  put  in  evidence  when  attended  with  circumstances  which 
rive  it  a  logical  connection  with  the  fact  in  issue,  and  not  other- 


wise. 


Tho  admission  of  the  testimony  of  Julienne  Rousse  gives  rise 
to  by  far  the  most  important  (jUL'stion  in  the  case.  Tiiat  testi- 
mony tended  to  prove  that  the  prisoner,  about  four  years  and  a 
halt'  l)efonj  the  trial,  at  a  place  beyond  the  jurisdiction  of  the 
United  States,  committed  tiie  crime  of  rape  upon  a  person  other 
than  tho  deceased;  and  the  question  is,  whether  that  bald,  naked 
fact,  being  put  in  evidence,  had  any  tendency  to  prove  any  mat- 
ter in  issue  botwec:.  the  state  and  the  defendant. 

These  questions  in  regard  to  the  relevancy  of  particular  items 
of  testimony  always  depend  upon  the  peculiar  circumstances  of 
the  case,  and  must  bo  solved  by  the  application  of  sound  jndg- 


r!F*lf 


560 


AMERICAN  CRIMINAL  REPORTa 


merit  and  common  sense.  It  very  often  happens,  as  practical 
men  in  the  profession  well  know,  that  facts,  winch  in  one  state 
of  the  evidence  and  one  aspect  of  the  case  are  entirely  irrelevant, 
suddenly,  by  a  sli<;ht  change  in  the  conditions,  become  of  i^reat 
importance.  Hence  the  n^jcessity,  which  so  often  happens  in 
attempting  to  take  written  testimony,  of  introducing  into  a 
deposition  so  many  facts  which  at  iirst  sight  seem  entiiv:ly  irrele- 
vant, but  which  may  become  admissible  and  important ;  hence, 
too,  one  reason  why  in  criminal  causes  it  is  so  important  that  the 
witnesses  should  testify  in  open  court,  and  in  the  presence  of  the 
respondent,  in  order  that  all  their  knowledge  should  bo  available 
to  meet  all  the  exigencies  of  the  trial. 

It  is  for  this  reason  that  so  many  reported  cases  in  the  law  of 
evidence  are  valuable,  not  so  much  in  establishing  principles  of 
law,  as  for  the  illustration  of  those  principles. 

There  is  a  great  mass  of  cases  so  similar  in  their  circumstances, 
and  which  have  occurred  so  often,  that  they  may  be  taken  as 
evidence  of  the  ai)])lieation  of  the  common  sense  and  cultivated 
reason  of  a  great  many  individuals,  and  so  come  to  have  the 
force  and  authority  of  established  law. 

I  think  we  may  assume,  in  the  outset,  that  it  is  not  the  (pialitj 
of  an  action,  as  good  or  bad,  as  unlawful  or  lawful,  as  criminal 
or  otherwise,  which  is  to  determine  its  relevancy.  I  take  it  to  be 
generally  true,  that  any  act  of  the  prisoner  may  be  put  in  evi- 
dence against  him,  provided  it  has  any  logical  and  legal  tendency 
to  prove  any  matter  which  is  in  issue  between  Inm  and  the  state, 
notwithstanding  it  might  have  an  indirect  bearing,  which  in 
strictness  it  ought  not  to  have,  upon  some  other  matter  in  issue. 
It  may  be,  that  in  some  cases  the  danger  resulting  (vmn  such 
indirect  bearing  might  be  so  great  in  comparison  with  its  import- 
ance in  regard  to  matters  on  which  its  bearing  was  legitimate, 
that  it  ought  not  to  be  admitted.  But  I  think  the  general  rule 
is  that  no  testimony  which  has  a  legitimate  bearing  iipon  any 
point  in  issue  can  be  excludeu. 

I  say  legitimate  heantuj  advisedly,  because,  as  already  sug 
gcsted,  although  undoubtedly  the  relevancy  of  testimony  is  ori 
ginally  a  matter  of  logic  and  common  sense,  still  there  arc 
many  instances  in  which  the  evidence  of  particular  facts  as  hcur 
ing  upon  particular  issues  has  been  so  often  the  subject  of  clis 
cussion  in  courts  of  law,  and  so  often  ruled  upon,  that  the  uiiitdl 
logic  of  a  great  many  judg(!s  and  lawyers  tnay  be  said  to  furnisli 


STATE  ».  LAP  AGE. 


mt 


as  practical 
n  one  state 
y^  irrelevant, 
ne  of  irreat 
happens  in 
iing  into  a 
tiiv^ly  irrele- 
aiit ;  lience, 
ant  that  the 
sence  of  the 
bo  available 

the  law  of 
rinciples  of 

'cuinstances, 
be  taken  as 
i  cultivated 
;o  have  the 

;  the  (pialitj 
as  criminal 
take  it  to  be 
)  put  in  evi- 
jal  tendency 
id  the  state, 
,',  which  in 
ter  in  isHiie. 
i  (mm  siu'Ii 

I  its  inipiirt- 
eij^itiniate, 

jfoneral  niif 
i<;  upon  any 

il ready  sug- 
Miony  is  ori- 

II  there  an' 
acts  as  bear 
tject  of  dis 
t  the  nnit(^l 
d  to  furnisli 


evidence  of  the  sense  common  to  a  great  many  individuals,  and, 
therefore,  the  best  evidence  of  what  may  be  properly  called  com- 
mon  sense,  and  thus  to  accpiire  the  authority  of  law.  It  is  for 
this  reason  that  the  subject  of  the  relevancy  of  testimony  has 
become,  to  so  great  an  extent,  matter  of  precedent  and  author- 
ity, and  that  we  may  with  entire  propriety  speak  of  its  legal 
relevancy. 

It  is  proper,  however,  in  the  outset,  to  notice  what  appears  to 
me  to  bo  a  fallacy  in  the  very  commencement  of  the  able  argu- 
ment for  the  state.  It  says :  "  Under  an  unexceptionable  charge, 
and  upon  other  testimony  than  that  of  Julienne  Rousse,  the 
jury  have  answered  the  first  question  {i.  <?.,  Did  the  defendant 
kill  the  deceased?)  in  the  affirmative."  If  it  could  be  known 
certainly  that  the  jury  did  not  give  any  weight  to  the  testimony 
excepted  to  in  determining  whether  the  prisoner  did  the  act ;  if 
it  could  be  certainly  known  that  the  evidence  i  "  Julienne 
Rousse  did  not  create  in  the  minds  of  the  jury  a  prejudice 
against  the  prisoner  on  all  the  points  of  his  case— the  remark 
might  be  well  founded.  Rut  that  is  just  what  we  do  not  and 
cannot  know,  although  what  we  do  know  of  the  constitution  and 
temper  of  juries  creates  in  us  a  very  strong  belief  of  the  con- 
trary. 

In  this  case  I  understand  it  to  be  conceded  by  the  government 
that  the  evidence  is  not  relevant  for  the  purpose  of  showing  who 
killed  the  deceased,  but  that  it  is  claimed  to  be  relevant  for  the 
purpose  of  showing  the  particular  act  that  he  was  engaged  in 
doing  when  he  committed  the  murder.  For  the  purpose  of 
showing  the  offense  to  be  murder  in  the  lirst  degree,  it  is  claimed 
to  be  relevant  as  tending  to  show  that  '  y  committed  the  murder 
while  in  the  act  of  committing  rape;  but  as  the  intent  is  the 
mysterious  solvent  which  opens  the  way  for  the  admission  of  the 
testimony,  it  would  not  be  relevant  for  the  purpose  of  showing 
that  he  had  first  committed  a  rape,  and  then  did  the  murder 
afterward. 

Proceeding,  then,  to  consider  what  has  been  settled  in  this 
matter,  I  think  we  may  state  the  law  in  the  following  proposi- 
tions: 

1.  It  is  not  permitted  to  the  prose('uti<m  to  attack  the  charac- 
ter of  the  prisoner,  unless  he  first  puts  that  in  issue  by  offering 
evidence  of  his  good  c'laractor. 
Vol.  II.-86 


AMERICAN  CRIMINAL  REPORTS. 


rjV; 


1 


2.  It  is  not  permitted  to  show  the  defendant's  bad  character 
by  showing  particular  acts. 

3.  It  is  not  permitted  to  show  in  the  prisoner  a  tendency  or 
disposition  to  commit  the  crime  with  which  he  is  charj^'od. 

4.  It  is  not  permitted  to  give  in  evidence  other  crimes  of  the 
prisoner,  unless  they  are  so  connected  by  ciryumstances  with  the 
particular  crime  in  issue  as  that  the  proof  of  one  fact  with  its  cir- 
cumstances has  some  bearing  upon  the  issue  on  trial  other  than 
such  as  is  expressed  in  the  foregoing  tliree  propoi^ititjiis. 

It  is  a  maxim  of  our  law,  that  every  man  is  presumed  to  be 
innocent  until  he  is  proved  to  be  guilty.  It  is  churacteristic,  of 
the  humanity  of  all  English  speaking  peoples,  that  you  cannot 
blacken  the  character  of  a  party  who  is  on  trial  for  an  allej^jcd 
crime.  Prisoners  ordinarily  come  before  the  court  and  the  jiuy 
under  manifest  disadvantages.  The  very  fact  that  a  man  is 
charged  with  a  crime  is  sufficient  to  create  in  many  minds  a 
belief  that  he  is  guilty.  It  is  quite  inconsistent  with  that  fair- 
ness of  trial  to  which  every  man  is  entitled,  that  the  jury  should 
be  prejudiced  against  him  by  any  evidence  except  what  relates 
to  the  issue ;  above  all,  should  it  not  be  permitted  to  blacken  his 
character,  to  show  that  he  is  worthless,  to  lighten  the  sense  of 
responsibility  which  rests  upon  the  jury,  by  showing  that  he  is 
not  worthy  of  painstaking  and  care,  and,  in  short,  that  the  trial 
is  what  the  chemists  and  anatomists  call  exjforiine^ituin  in  cor- 
j?ore  vili. 

Of  course,  if  the  respondent  sees  fit  to  put  his  character  in 
issue  by  offering  evidence  tending  to  show  that  it  is  good,  it  is 
then  permitted  to  the  prosecution  to  rebut  this  testimony  hy 
showing  that  it  is  bad ;  but  I  think  the  weight  of  authority  is  to 
the  ellV'ct  that  this  must  be  done  by  evidence,  not  of  particular 
facts,  but  of  rej)utation. 

The  law  in  regard  to  proof  of  intent  is,  I  apprehend,  in  no 
particular  different  from  the  law  in  regard  to  the  proof  of  other 
facts,  unless  it  may  i)e  in  the  general  principht  that  a  persfm  is 
ordinarily  presumed  to  intend  the  natural  cotiseciuenccs  of  his 
actions.  But  always  the  evidence  will  be  subject  t(»  the  condi- 
tion that  it  legally  and  logically  tends  to  prove  the  facts  in  issue, 
whether  it  be  the  intent  or  any  other  fact. 

The  foregoing  positions  are  illustrated,  and  I  tlnnk  established, 
by  the  following  citations; 

"  Where  a  defendant  has  voluntarily  put  his  character  in  issue, 


'  I  >■"'». 


STATE  V.  LAPAQB, 


563 


ictcr  m  issue, 


and  evidence  for  the  i)iosecution  has  been  introduced,  it  has  been 
eald  the  exuiuination  may  be  extended  to  particiihir  facts,  tliough 
this  has  lately  been  denied  by  courts  of  high  respectability ;  and 
certainly  it  is  very  oppressive  to  a  defendant,  as  well  as  irrele- 
vant to  the  real  issue,  to  admit  in  rebuttal  a  series  of  independ- 
ent facts,  forming  such  a  constituent  offense : "  1  Wharton's  Am. 
Crim.  Law,  and  eases  cited,  sec.  G37. 

*'  AVhile,  however,  bad  character  cannot  be  put  in  issue  by  the 
prosecution,  it  is  permitted  to  introduce  evidence  of  prior  mis- 
conduct, where  it  is  relevant  either  to  prior  malice  towards  an 
individual,  or  guilty  knowledge  :"  Wharton,  sec.  031),  and  cases 
cited. 

"But  in  other  criminal  cases  the  prosecutor  cannot  enter  into 
the  defendant's  character,  unless  the  defendant  enable  him  to  do 
BO  by  calling  witnesses  in  support  of  it,  and  even  then  the  prose- 
cutor cannot  examine  into  particular  facts,  the  general  character 
of  the  defendant  not  being  put  in  issue,  but  coming  in  collater- 
ally :"     BuUer's  Nisi  Prius,  296. 

"  P)Ut  it  is  not  competent  for  the  government  to  give  in  proof 
the  bad  character  of  the  defendant,  unless  he  first  opens  that  line 
of  inquiry  by  evidence  of  good  character:"  Com.  v.  Welder,  5 
Cush.,  325. 

It  will  be  seen  that  these  authorities  support  not  only  the  first 
projiosition  above  stated,  but  also  the  others. 

I  also  cite  tiie  following  authorities  in  support  of  the  other 
proixisitions,  which,  it  seems  to  me,  need  no  further  support. 

"  It  is  here,  however,  that  the  fundamental  distinction  begins, 
for  while  j)articular  acts  may  be  proved  to  show  malice  or 
soieiifi  r,  it  is  inadmissible  to  prove,  eitlier  in  this  or  any  other 
way.  that  the  defendant  had  a  tentlency  to  the  crime  charged. 
Thus,  in  Kngland,  it  has  been  held  that,  on  the  trial  of  a  person 
charged  with  an  umiatural  crime,  it  was  not  permitted  to  prove 
that  the  defendant  had  admitted  that  he  had  a  tendency  to  such 
practices ;  and  so,  on  an  indictment  against  an  overseer  on  a  plan- 
tation for  the  murder  of  a  slave,  evidence  as  to  the  prisoner's 
general  habits  as  to  punishing  other  slaves  is  not  admissible  for 
the  prosecution :"  1  Wharton's  Am.  Crim.  Law,  sec.  640,  and 
cases  cited. 

"So,  ])roof  of  a  distinct  murder,  committed  by  the  defendant 
at  a  different  time,  or  of  some  other  felony  or  transaction  com- 
mitted upon  or  against  a  different  person,  and  at  a  different  time. 


ill 


•t  I 


564 


AMERICAN  CRIMINAL  REPORTS. 


»;!,< 


Ih  i\  • 


in  which  the  defeiuhmt  participated,  cannot  be  admitted  until 
proof  has  heen  i(iven  establishing  or  tending  to  estaljlish  the 
offense  with  whicli  he  is  charged,  and  showing  eonu;  cunnoftion 
between  the  dilt'erent  transactions,  or  snch  facts  or  circnriistaiioes 
as  will  wari-ant  a  prer^ninption  that  the  latter  grew  ont  of,  and 
was  to  some  extent  indnced  by,  some  circnmstanccs  connected 
with  the  former,  in  which  case  snch  circnmstanccs  C(*nnected 
witli  the  former  as  are  calculated  to  show  the  quo  aniino  or 
motive  by  which  tlie  prisoner  was  actuated  or  intiuenccd  in 
regard  to  the  subsequent  transaction  are  competent  and  legiti- 
mate testimony:"  i  Wharton's  Am.  Cr.  Law,  sec.  647,  and 
cases  cited. 

In  lieylna  v.  Oddy,  4  Eng.  L.  and  Ef  ,  572,  it  was  held  that 
"  on  an  indictment  for  feloniously  receiving  goods  knowing  them 
to  have  been  stolen,  it  is  not  competent  for  the  prosecutor,  in 
proof  of  guilty  knowledge  of  the  prisoner,  to  give  in  evidence 
that  the  prisoner,  at  a  time  previous  to  the  receipt  of  the  prose- 
cutor's goods,  had  in  his  possession  other  goods  of  the  same  sort 
as  those  mentioned  in  the  indictment  but  belonging  to  a  dilferont 
owner,  and  that  those  goods  had  been  stolen  from  such  owner.*' 

Lord  Campbell,  C  J.  "I  am  of  opinion  that  the  evidence 
objected  to  was  as  admissible  under  the  first  two  counts  as  it  was 
under  the  third,  for  it  was  evidence  which  went  to  show  that  the 
prisoner  was  a  very  bad  man,  and  a  likely  person  to  commit  f-iich 
olfenses  as  those  charged  in  the  indictment.  But  the  law  of 
England  does  not  allow  one  crime  to  be  proved  in  (trdcr  to  raise 
a  probability  that  another  crime  has  been  committed  by  the  poi- 
j)etrator  of  the  first.  The  evidence  which  was  received  in  tliu 
case  does  not  tend  to  show  that  the  prisoner  knew  that  tIio>c 
particular  goods  were  stolen  at  the  time  that  he  received  tlioni. 
The  rule  which  has  prevailed  in  the  case  of  indictments  fur 
uttering  fcjrged  bank  notes,  of  allowing  evidence  to  be  given  of 
the  uttering  other  forged  notes  to  dill'erent  persons,  has  gone 
great  lengths,  and  I  should  be  unwilling  to  see  that  rule  applied 
irenerallv  in  the  administration  of  the  criminal  law.  We  are  all 
of  opinion  that  the  evidence  admitted  in  this  case  with  rcganl 
to  the  ,s('!>'/if(-'t'  was  improperly  admitted,  as  it  atforded  no  groiiiul 
for  any  legitimate  inference  in  respect  of  it.  The  conviction, 
tlierefore,  must  bo  quashed  :  "  Reghia  v.  Oddy^  4  Eng.  L.  and 
Eq.,  574. 

In  Shaffner  v.  Commonwealth,  72  Pa.  St.  (13  Am.  Rep.),  the 


i|^:-''t'f!;M!*|^! 


?! 


STATE  V.  LAPAGE. 


565 


itted  nntil 

tahlisli  tlie 

connection 

C'unistances 

)ut  of,  and 

connected 

connected 

>  an! mo  or 

fluenced  in 

and  lei-iti- 

;.  64:7,  and 

;8  held  that 
>wing  them 
oseciitor,  in 
in  evidence 
F  the  prose- 
e  same  sort 
0  a  di  lie  rent 
ich  owner." 
10  evidence 
its  as  it  was 
o\v  tliat  tlic 
ouiiiiit  such 
the  law  of 
lor  to  raise 
)\  tlie  per- 
ved  in  tlie 
that  tlie.se 
•ived  tliem. 
L!tinents  for 
he  {^iven  of 
s,  has  ijoiie 
ule  applied 
Wc  are  all 
with  reirurd 
J  no  iifi'oimd 
!  conviction, 
Eiij;.  L.  and 

1.  Rep.)j  tl»e 


prisoner  was  indicted  for  tlie  murder  of  his  wife  by  poison. 
There  was  evidence  of  his  criminal  intimacy  with  the  wife  of  S., 
on  whose  life  waa  an  insurance,  the  proceeds  of  which,  on  his 
death,  the  defendant  had  tried  to  procure.  Held,  that  evidence 
that  S.  died  with  the  same  symptoms  as  the  defendant's  wife, 
and  had  been  attended  by  the  defendant,  was  inadmissible. 

Agnew,  J.,  in  his  opinion,  said,  "  It  is  a  general  rule,  that  a 
distinct  crime,  unconnected  with  that  laid  in  the  indictment,  can- 
not be  given  in  evidence  against  a  prisoner.     It  is  not  proper  to 
raise  a  presumption  of  guilt,  on  the  ground  that,  having  com- 
mitted one  criiiiG,  the  depravity  it  exhibits  makes  it  Hkely  he 
would  commit  another.     Logically,  the  commission  of  an  inde- 
pendent offense  is  not  proof,   in  itself,  of   the  commission  of 
another  crime,  yet  it  cannot  be  said  to  be  without  influence  on 
the  mind,  for  certainly,  if  one  be  shown  to  be  guilty  of  another 
crime  equally  heinous,  it  will  pnjmpt  a  more  ready  belief  that 
he  might  have  committed  the  one  with  which  he  is  charged.     It 
therefore  predisposes  the  mind  of  the  juror  to  believe  the  pris- 
oner guilty.     To  make  one  criminal  act  evidence  of  another,  a 
connection  between  them  must  have  existed  in  the  mind  of  the 
actor,  linking  them  together  for  some  purpose  he  intended  to 
accomplish ;  or,  it  must  be  necessary  to  identify  the  person  of 
the  actor  by  a  connection  whi(di  shows  that  he  who  committed 
the  one  must  have  done  the  other.     Without  this  obvious  con- 
nection, it  is  not  only  unjust  to  the  prisoner  to  compel  him  to 
acquit  himself  of  two  offenses  instead  of  one,  but  it  is  detri- 
mental to  justice  to  burden  a  trial  with  multiplied  issues  that 
tend  to  confuse  and  mislead  the  jury.    The  most  guilty  criminal 
may  be  innocent  of  other  offenses  charged  against  him,  of  which, 
if  fairly  tried,  ho  might  acquit  himself.     From  the  nature  and 
prejudicial  chara(!ter  of  such  evidence,  it  is  obvious  it  should  not 
l»e  received,  unless  the  mind  plainly  perceives  that  the  commis- 
sion of  the  onu  tends.,  by  a  visible  connection,  to  j)r(>ve  the  com- 
mission <»f  the  other  by  the  prisoner.     If  the  evidence  be  so 
dubious  that  the  judge  does  not  clearly  perceive  the  connection, 
the  luMiolit  of  the  doubt  should  be  given  to  tiie  prisoner,  instead 
of  snlTcring  the  minds  of  the  jurors  to  be  prijjudiced  bv  an 
indepeinlont  fact  carrying  with  it  no  proper  evidence  of  the  par- 
ticular guilt : "     S/Hiffiier  0.  Coiiimonweafth,  13  Am.  11.,  651. 

"It  is,  therefore,  not  competent  for  the  prosecutor  to  give 
ovideneo  of  facts  tending  to  prove  another  distinct  oll'cn.se,  for 


566 


AMERICAN  CRIMINAL  REPORTS. 


the  purpose  of  raising  an  inference  that  the  prisoner  has  com- 
mitted the  crime  in  question ;  nor  is  it  competent  to  show  that 
he  has  a  tendency  to  commit  the  offense  with  which  he  is  charged. 
Thus,  on  a  prosecution  for  an  infamous  offense,  an  admission  by 
the  prisoner  tliat  he  had  committed  sucli  an  offense  at  auotlier 
time  was  held  to  have  been  prope-i'ly  rejected:  Bex  v.  Cole, 
cited  in  1  Pldllips  on  Ev.,  499  (Sth  cd.):"  iitate  v.  lienton,  15 
N.  H.,  174. 

The  case  of  Peoj)le  v.  Corhin,  56  N.  Y.,  303,  well  illustrates 
the  practical  application  of  this  doctrine.  The  iiulictmeiit  wiis 
for  forging  the  indorsement  of  one  Van  Amburgh  on  a  promis- 
sory note.  The  defense  was,  that  the  prisoner  was  authorizcil 
to  sign  Van  Amburgh's  name.  The  prisoner  had  had  siieli 
authoi'ity,  but  the  prosecution  attempted  to  show  that  tlio 
aiithority  had  been  revoked.  The  question  of  the  prisoner's 
guilt  or  innocence  depended  upon  the  inquiry  whether  the  pris- 
oner lionestly  believed  that  he  wjis  authorized  to  nuike  the 
indorsement,  or  whether  he  knew  that  the  authority  had  been 
revoked,  and  signed  Van  Amburgh's  name  with  criminal  intent. 
To  establish  such  intent,  evidence  was  offered  tending  to  show 
his  acknowledgment  that  he  had  made  a  similar  unautiiorizcd  use 
of  the  name  of  his  father-in-law  on  other  notes.  The  county 
judge  charged  the  jury  as  follows:  "While  the  proof  that  he 
has  been  guilty  of  other  forgeries  is  not  evidence  upon  which 
you  are  to  convict  him  of  this  forgery,  yet  the  proof  of  other 
forgeries  in  connection  with  this,  so  far  as  they  are  in  the  case, 
you  have  the  right  to  consider,  in  determining  what  his  inten- 
tions were  at  the  time  this  paper  was  made  and  uttered.  So  far, 
you  may  consider  all  that  character  of  evidence  in  the  case,  in 
determining  the  intent  at  the  time  this  paper  was  made  and 
uttered."  Tlu;  judge  also,  in  his  charge,  said,  "  The  fact  that 
the  defendant  is  guilty  of  other  forgeries  is  no  evidence  to  prove 
that  he  couimittiid  this  forgery.  So  far  as  his  admissions  to 
Ganoung  concede  the  conunission  of  forgeries  against  Ganonng, 
they  may  be  considered  by  you  in  determining  what  was  his 
intent  at  the  time  this  note  was  made  and  uttered." 

The  verdict  was  set  aside,  aii<l  a  new  trial  granted. 

Rapallo,  J.,  in  di'Iiveriiig  the  judgment  of  the  court,  saiil : 
"The  cases  in  which  i>ffenses  other  than  those  charged  in  the 
indictment  may  be  proved,  for  the  ]>iirpose  of  showing  gnilty 
knowledge  or  intent,  are  very  few;  and  this,  wo  think,  is  not 


\? 


h.:. 


I   y\ 


STATE  t>.  LAPAGB. 


er  has  com- 
0  show  tliat 
e  is  eharf!;ed. 
idmission  by 

3  at  aiiotlior 

Rex  V.  Vole, 

lienion,  15 

11  illustrates 
ictinent  was 
n  a  proiiiis- 
>  autliorizi'd 
il  had  siifli 
'W  that  tlio 
le  prisoner's 
ler  tlie  pris- 
nuike  the 
:y  had  been 
linal  intent. 
ny;  to  show 
tliorized  use 
The  county 
•oof  that  he 
upon  which 
)of  of  otlier 
in  the  case, 
it  his  inteu- 
ed.  So  fur, 
tiie  case,  in 
s  made  and 
le  fact  that 
nee  to  prove 
liuissiiins  to 
St  Ganoiiiii;, 
hat  was  his 


court,  said : 
r<i^od  in  the 
rt'in<if  f?uilty 
link,  is  not 


one  of  them.  The  fact  that  the  prisoner  made  an  unauthorized 
use  of  the  name  of  Ganoung,  if  established,  shows  that  he  was 
morall}'  capal)le  of  committing  the  same  offense  against  Van 
Ambiirgh,  but  does  not  legitimately  tend  to  show  that  he  did  so, 
or  that  he  knew  and  understood  that  Van  Amburgh's  authority 
had  been  withdrawn,  or  that  the  signature  in  question  had  been 
made  with  criminal  intent :"     People  v.  Corliti,  15  Am.  li.,  429. 

The  cases  whicli  have  been  cited  by  counsel  for  tlie  govern- 
ment afford  full  illustration  of  the  principles  laid  down  iu  what 
has  been  said  before. 

It  is  proper,  however,  to  rcjnark  what  seems  to  me  to  be  a 
fallacious  use  of  the  word  intent.  Ordinarily,  intent  is,  I  think, 
an  inference  of  law  from  acts  proved.  The  maxim  is,  that  every 
man  must  be  taken  to  intend  the  natural  consequences  of  his 
act ;  and  if  he  knowingly  and  voluntarily  does  an  act  which  is 
in  violation  of  law,  he  is  held  to  have  intended  to  violate  the 
law.  This  I  think  would  be  true,  whether  he  did  or  did  not 
know  that  the  act  was  unlawful.  Thus,  if  a  man  should  know- 
ingly and  voluntarily  utter  a  forged  bank-note,  or  a  counterfeit 
coin,  he  would  be  held  guilty  whether  he  did  or  did  not  know 
that  the  act  was  unlawful. 

The  cases  cited  by  counsel  for  the  government  admit  of  being 
classified  into  several  distinct  groups. 

In  the  first  place  is  the  class  of  cases  in  which  other  offenses 
are  shown  for  the  purpose  of  proving  guilty  knowledge.  To 
this  class  belong  those  cases  in  which,  in  the  trial  of  indictments 
for  uttering  forged  bank-notes,  or  counterfeit  coin,  the  proof  of 
other  offenses  of  the  same  kind  is  admitted.  It  might  well  hap- 
pen that  a  person  might  have  in  his  possession  a  single  counter- 
feit bill  or  coin  without  knowing  it  to  be  such  ;  but  he  would  be 
much  less  likely  to  do  so  twice,  and  every  repetition  of  such  an 
act  would  increase  the  probability  that  he  knew  that  the  bills  were 
counterfeit.  If  he  did  know  it,  the  guilty  intent  would  be  an 
implication  of  law,  and  not  an  inference  of  fact.  To  this  class 
belongs  the  case  of  Reg.  v.  Roebuck,  cited  in  the  brief. 

Another  class  of  cases  consists  of  those  in  which  it  becomes 
necessary  to  show  that  the  act  for  which  the  prisoner  was 
indicted  was  not  accidental,  e.  g.,  where  the  ])risoner  had  shot 
the  same  person  twice  within  a  short  time,  or  where  the  same 
person  had  fired  a  rick  of  grain  twice,  or  where  several  deaths 
by  poison  had  taken  place  in  the  :^aiue  family,  or  where  children 


i-'ki 


-li 


W! 


'41 1 


568 


AMERICAN  CRIMINAL  REPORTa. 


of  the  same  mother  liad  mysteriously  died.  In  snch  cases  it 
might  well  happen  tliat  a  man  should  shoot  anotlier  accidentally, 
but  that  he  should  do  it  twice  within  a  short  time  would  be  very 
unlikely.  So,  it  might  easily  happen  that  a  man  using  a  gun 
might  fire  a  rick  of  barley  once  by  accident,  but  that  he  should 
do  it  several  times  in  succession  would  be  very  improbable. 

So,  a  person  might  die  of  accidental  poisoning,  but  that  sev- 
eral persons  should  so  die  in  the  same  family  at  different  times 
would  be  very  unlikely. 

So,  that  a  child  should  be  suffocated  in  bed  by  its  mother 
might  happen  once,  but  several  similar  deaths  in  the  same  fiunily 
could  not  reasonably  be  accounted  for  as  accicents. 

So,  in  the  case  of  embezzlement  effected  by  means  of  false 
entries,  a  single  false  entry  might  be  accidentally  inatle ;  but  the 
probability  of  accident  would  diminish  at  least  as  fast  as  the 
instances  increased.  To  this  class  of  cases  belong  AVa;  v.  Voh, 
Reg.  V.  Oeering,  Reg.  v.  Cotton,  Reg.  v.  Roder.  Rex  v.  Mogg, 
Reg.  V.  Dossett,  Reg.  v.  Bailey,  Reg.  v.  Proud,  Reg.  v.  Richard- 
son, cited  in  the  brief  for  the  prosecution. 

There  is  another  class  of  cases  in  which  proof  of  the  cominis- 
Bion  of  one  crime  tends  to  show  a  motive  for  the  commission  of 
the  crime  with  which  the  prisoner  is  charged. 

"  A.  was  indicted  for  the  murder  of  II.  It  was  opined  that 
A.,  having  malice  against  P.,  had  hired  H.  to  m\irder  him,  and 
that  II.  did  so ;  but  that  H.  being  detected,  A.  had  murdered  II. 
to  prevent  a  discovery  of  his  (A.'s)  guilt  respecting  the  nnirder 
of  P.  Evidence  was  given  of  expressions  of  malice  used  by  A. 
towards  P.,  and  it  was  held  that  the  prosecutor  might  also  give 
evidence  to  show  that  II.  was  in  fact  the  person  by  wlK)m  P. 
had  been  murdered :"  Rex  v.  Clewes,  6  Car.  and  P.,  221 ;  Lit- 
tledale,  liar.  D.  1,  1942. 

"On  trial  of  the  prisoner  for  the  murder  of  his  wife,  in  the 
absence  of  direct  evidence,  proof  of  an  adulterous  iutercourso 
between  the  prisoner  and  another  woman  is  admissible,  to  repel 
the  presumption  of  innocence  arising  from  tlie  conjugal  rela- 
tion :"     State  v.  Watkins,  9  Conn.,  47  ;  2  U.  S.  D.,  Sssl 

So,  in  Com.  v.  Ferrigan,  the  adulterous  intercourse  of  the 
defendant  with  the  wife  of  the  deceased  tends  to  show  a  motive 
for  the  murder. 

In  cases  of  indictments  for  obtaining  goods  under  false  pre- 
tenses, it  very  ofteu  hapjjens  that  the  respondent  has  been  in 


STATE  V.  LAPAGE. 


5G9 


inch  cases  it 
accidentally, 
ould  he  very 
using  a  gun 
iit  he  should 
•ohahle. 
)ut  that  sev- 
BFerent  tiincB 

r  its  mother 
!  same  fiuniiy 

Jans  of  false 
ule;  hut  tiie 
!  fast  as  the 
fiex  V.  Vohe, 
^iex  V.  Mogg, 
.  V.  Richard- 

the  comniis- 
mmifjsiou  of 

opined  that 
ler  him,  and 
nurdered  II. 

the  murder 
e  used  hy  A. 
Lj;ht  also  give 
hy  whom  r. 
P.,  221;  Lit- 

i  wife,  in  the 
intercourse 
Me,  to  repel 
•MJngal  rola- 
2S8. 

>iirse  of  the 
low  u  motive 

er  false  pre- 
has  hcen  in 


Fomc  kind  of  husiness  of  wliich  huying  and  8<flling  go(Hl8  on 
credit  makes  a  part ;  and  in  sncli  case  the  dithcnlty  is  t(»  draw 
the  line  between  the  points  vhere  legitimate  hii»in('K8  ceawm  and 
fraud  begins.  In  such  cases  a  t-ingle  purchase  of  goods  on  credit 
might  happen  in  the  ordintiry  course  of  husineKs;  l)nt  if  a  party 
should  make  several  purchases  of  goods  at  a  time  when  he  was  in 
failing  circumstances,  tliat  fact  would  liave  some  tendency  to 
show  that  he  knew  that  he  was  in  failing  circumstances,  and  tliat 
he  did  not  intend  to  pay  for  them,  or  expert  that  he  Khoiild  he 
able  to  do  it.  Of  course  tlie  effect  of  such  testimony  wcMild 
depend  upon  the  number  and  amount  of  such  purchases,  the 
after  disposition  of  the  goods  purchased,  and  all  the  other  cir- 
cumstances. To  this  class  belong  the  cases  of  Com,,  v.  IuihIumh., 
Bradley  v.  Ohear,  and  Ilovey  v.  Grant. 

Another  chiss  of  cases  consists  of  those  in  which  the  evidence 
tends  to  show  a  general  plan  or  conspiracy,  one  act  of  which  was 
that  which  is  in  issne.  To  this  (tlass  belong  Manon  v.  The  State, 
and  perhaps  Cin/i.  v.  Turner  tfc  Shearer. 

If  the  indictment  were  for  being  a  common  seller  of  spirituous 
li(|Uor,  the  charge  could  bo  proved  in  hardly  any  other  way  than 
by  showing  many  si)e(Mfic  acts;  and  c(»nversely,  if  a  irian  were 
proved  to  be  a  professional  counterfiiitcr,  that  would  be  evidence 
tending  to  show  his  guilty  intent.  Of  this  description  are  Rex 
i".  Balls  and  (Join.  v.  Edyerhj. 

In  the  case  of  sexual  crimes,  as  fornication  and  adult(!ry,  wliere 
the  object  is  to  prove  that  the  respondent  has  committed  the 
crime  with  a  particular  individual,  evidence  tending  to  show  pre- 
vious acts  of  indecent  familiarity  would  have  a  tendency  to  jirove 
the  breaking  down  and  removal  of  the  safeguards  of  self-respect 
and  modesty,  and  the  gradual  advance,  step  by  step,  to  the  crime. 
Proof  of  the  actual  connnission  of  the  same  crime  would  still 
more  strongly  tend  to  show  the  removal  of  those  safeguards,  and 
still  more  to  make  probable  the  coiiimishioii  (»f  the  crime  on  trial. 
To  this  class  belong  ('via.  v.  Ilortott,  Com.  /,'.  Th rusher.,  State  v. 
Wallace,  State  v.  Marvin,  Com.  v.  Mcrrlaia,  and  Coin,,  v. 
La  hey. 

It  should  also  be  remarked  that,  this  being  a  niiitt<'r  of  jndg- 
nu'Ut,  it  is  (|uite  likely  that  courts  would  not  alwiiys  agree,  and 
that  some  courts  might  see  a  logical  connect idii  wlicrt;  otiicrs 
could  not.  lint  however  extreme  the  case  may  i«',  1  ihiiik  it 
will  be  found  that  the  courts  have  always  prfjfessiid  to  [)ut  the 


i; 


,   I 


670 


AMERICAN  CRIMINAL  REPORTS. 


^  * 


m 


» ,'* 


admission  of  the  testimony  on  the  gronnd  tliat  there  was  some 
logical  connection  between  the  crime  proposed  to  be  proved 
other  than  the  tendency  to  commit  one  crime  us  manifested  by 
the  tendency  to  commit  the  other. 

In  the  case  nnder  consideration,  I  cannot  see  any  sudi  logieid 
connection,  between  the  commission  of  the  rape  upon  Julioiine 
Rousse  and  tlie  murder  of  Josio  Langmaid,  as  the  law  requires. 
I  am  unable  to  see  any  connection  by  which  from  the  linst  crime 
can  be  inferred  that  the  respondent  was  attempting  the  commis- 
fiion  of  a  rape  wlien  he  committed  the  murder,  if  he  did  it,  other 
than  such  inference  as  I  understand  the  law  expressly  to  exclude. 
Proof  of  the  first  crime  would  show  that  the  respondent  was  a 
very  bad  man — would  perhaps  show  a  tendency  or  disposition  to 
commit  that  particular  crime ;  but  it  would  go  no  further,  and  ia 
fact  would  amount  to  little  more  than  an  attack  upon  the  respon- 
dent's character,  which  is  inadmissible  uidess  he  puts  it  in  issue, 
and  an  attack  upon  his  character  by  showing  particular  acts, 
which  is  also  inadmissible. 

There  is  another  consideration  which  makes  necessary  the 
extremest  caution  in  the  admission  of  this  kind  of  testimony,  and 
that  is,  the  hardship  which  would  be  imposed  upon  the  respond- 
ent by  raisiiiic  such  collateral  issues,  and  the  great  complicatioa 
wliich  might  be  introduced  into  the  trial.  I  do  not  by  any 
means  ijitent  to  assert  that  this  consideration  is  conclusive.  I 
do  not  see  how,  if  the  collateral  fact  has  a  legal  tendency,  on  the 
principles  I  have  stated,  to  prove  the  fact  in  issue,  it  can  be 
excluded. 

It  seems  to  me  clear  that,  if  the  evidence  of  the  rape  of 
Julienne  Rousse  were  admissible,  it  would  be  equally  admissible 
to  prove  the  commission  of  any  other  similar  offense,  and  that 
the  government  would  not  be  conlincd  to  direct  evidence  of  the 
fact. 

We  learn  from  the  newspapers  of  the  day  that  there  is  a  vehe- 
ment suspicion  that  the  same  person  who  murdered  Josie  Lang- 
maid  murdered  Miss  Ball  at  St.  Albans,  and  it  would  be  equally 
admissible  to  try  that  case  and  show  that  fact  as  the  other.  The 
necessity  of  proving  that  fact,  partly  or  wholly  by  an  elaborate 
combination  of  circumstantial  evidence,  would  not,  that  1  can  see, 
make  it  any  the  less  admissible.  It  would  certainly  be  an 
extreme  hardship  on  the  prisoner  to  compel  liim  to  enter  upon 
Buch  an  investigation.     I  mention  tliis  case  to  illustrate  the  neces- 


STATE  V.  LAPAGE. 


571 


re  was  some 
)  be  proved 
aiiifested  by 

sueli  logical 
Mill  Julienne 
law  requires. 
If  first  crime 
tilt'  com  mis- 
did  it,  other 
y  to  exclude. 
:>iidunt  was  a 
lisposition  to 
rtber,  and  ia 
\i  the  respun- 
ts  it  in  issue, 
pticular  acts, 

leccssary  the 
stiinony,  and 
the  respond- 
coinplicatioa 
not  by  any 
jnclusive.  I 
leucy,  on  the 
e,  it  can  be 

the  rape  of 
ly  admissible 
use,  and  that 
ideiice  of  the 

ure  is  a  vehe- 
1  Josie  Lang- 
Id  be  equally 
I  other.  The 
an  elaborate 
hat  I  can  see, 
tainly  be  an 
o  enter  upon 
•ate  the  neces- 


sity of  extreme  caution  not  to  admit  such  testimony  unless  there 
can  be  seen  some  distinct  logical  connection,  such  as  the  law 
reciuires,  between  the  fact  proposed  to  be  proved  and  the  fact  in 
issue. 

In  the  case  of  State  v.  O'Brien,  119  Mass.,  342,  the  law  in 
regard  to  the  admissibility  of  evidence  as  to  character  is  very 
fully  ami  satisfactorily  discussed.  The  distinction  that  the  term 
character  concerns  what  the  man  is,  and  the  term  reputation 
concerns  what  is  said  of  liiin,  is  kept  plainly  in  view;  and  it  is 
clearly  shown  that  the  only  legitimate  mode  of  proving  character 
is  by  showing  reputation. 

Now,  I  tliink  a  careful  examination  of  that  part  of  the  charge 
which  relates  to  this  evidence  will  show  that  it  really,  in  sub- 
staiici',  aiuounted  to  instructing  the  jury  that  they  were  to  find 
the  character  of  the  prisoner  from  the  fact  proved  by  Rousse, 
and  infer  from  such  character  tliat  he  would  be  likely  to  be  actu- 
ated by  passion  and  lust.  It  was  really  instructing  the  jury  that 
they  might  find,  from  a  particular  act  proved,  the  prisoner's 
character  as  a  man  possessed  by  unlawful  and  lustful  passion,  and 
inter  from  that  that  he  was  actuated  by  such  passion  in  his  con- 
duct to  the  deceased.  The  matter  really  reduces  itself  to  attack- 
ing the  jM-isoner's  character  by  the  proof  of  particular  acts,  which 
the  authorities  clearly  show  to  be  inadmissible. 

This  portion  of  the  charge,  though  not  expressly  excepted  to, 
is  mentioned  as  showing  the  particular  view  with  which  the  evi- 
dence excepted  to  was  admitted. 

Laiu),  J.  "  All  murder  committed  *  *  *  in  perpetrating 
or  attempting  to  per[)otrate  \\\\w  *  *  *  is  murder  in  the 
first  degree  : "  Gen.  Stats.,  ch.  20-4,  sec.  1.  The  state  claimed 
(1)  tliat  the  prisoner  murdered  Jttsie  A.  Laiigmaid ;  and  (2)  that 
the  murder  was  committed  in  perpetrating,  or  attempting  to  per- 
petrate upon  her,  tiie  crime  of  rape.  Both  these  facts  were  put 
in  issue  by  the  j)lea  of  not  guilty.  It  was  for  its  su])posed  bear- 
ing on  the  second  issue  that  the  testimony  of  Julienne  Rousse 
was  admitted,  and  the  judge  who  charged  the  jury  guarded 
against  any  other  application  of  the  evidence,  so  far  as  a  direction 
from  the  bench  could  have  that  effect  upon  the  minds  of  the 
jury.  The  ground  upon  which  the  jury  were  told  they  might 
consider  it,  in  determining  whether  the  {irisoner  was  perpetrating 
or  attempting  to  per])etrate  a  rape  when  he  committed  the  nuuvli-r. 


672 


AMERICAN  CRIMINAL  REPORTS. 


)S 


I 


was,  that  it  bore  upon  the  question  of  intent,  and  the  inpjenious, 
not  to  say  suljtle,  argument  of  the  attorney-general  rests  wholly, 
as  I  understand  it,  on  the  same  ground.  He  says,  "  If  lie  (the 
prisoner)  had  passed  counterfeit  money  at  the  time  and  place 
when  and  where  he  raped  Julienne  Rousse,  and  other  counterfeit 
money  had  been  found  in  his  possession  at  the  time  and  place 
when  and  wliere  he  killed  Josie  Langmaid;  if  he  had  got  a 
negro  boy  into  his  possession  at  the  former  time  and  place  with 
intent  to  send  him  into  slavery,  and  had  got  another  negro  boy 
into  his  |)ossession  at  the  latter  time  and  place,  would  there  he 
any  doubt  that  his  intent  on  the  former  occasion  would,  in  fact. 
be  considered  by  every  intelligent  member  of  the  human  fiiinilv 
as  entitled  to  some  weight  on  the  question  of  his  intent  on  the 
latter  occasion  ?  *  *  *  What  is  there  in  the  act,  the  circum- 
stances, or  the  intent  of  kidnaping,  or  passing  counterfeit  iikiiicv. 
that  makes  us  feel  the  probative  force  of  the  jiroved  inreiit  uf 
one  occasion  upon  the  question  of  intent  four  years  ami  four 
months  afterward.'^,  and  prevents  our  feeling  any  |)r<)l>ative  force 
<»f  such  evi<lence  in  the  present  case?"  Starting,  then,  with  the 
claim  that  this  evidence  was  admissible  upon  the  (|nestinii  of 
intent,  it  is  necessary  to  understand  just  what  intent  i^  iinaiit. 
Was  it  aji  intent  to  commit  the  crime  of  murder^  Certainlv 
not.  That  crime  must  be  fully  made  out,  as  the  learned  juilu;e 
correctly  t(»ltl  the  jury,  by  other  and  entirely  independent  evi- 
dence. IK'  said,  "It  is  a  fundamental  principal  oi'  law,  that 
evidence  that  a  defendant  committed  one  ofl'ense  caniiut  he 
received  to  jjrove  that  he  committed  another  and  distinct  otl'iii^^e. 
This  j)rinciple  we  must  take  care  not  to  violate.  And,  therefore. 
you  are  iu)t  to  regard  the  evidence  of  didienne  lioussi'  as  any 
proof  or  evidence  that  the  prisoner  killed  ffosie  LaiiuninM. 
Therefore,  unless  you  find  from  ot/ifr  evidence,  entirely  inde- 
pendent of  that  of  Julienne  Rousse,  that  the  prisoiu'r  killed  ainl 
murdered  Josie  Langmaid,  you  must  reject  her  evidence  altu- 
gether."  This,  of  course,  covers  all  qiU'stious  of  intent,  so  far 
as  regards  the  crime  of  murder. 

Was  it  an  intent  to  commit  murder  in  the  first  degree  i;  Tin; 
answer  to  this  is  surely  in  the  negative.  Such  a  general  intent 
could  only  be  shown  liy  (evidence  of  a  ddilfei-ale  and  |)renie(|i- 
tated  killing  in  out  of  the  ways  |tointci|  oiit  by  the  statute,  or 
otherwise.  I'esides.  tlii-  (pic-tion.  like  the  otln'i'.  .seems  to  In) 
fully  an.iwer(.'il  by  the  charge.     The  jury  were  told  that  "tlio 


i 

STATE  I'.  LAPAGE. 


e  ingenious, 
rests  wholly, 
"  If  he  (the 
le  and  place 
r  counterfeit 
le  and  place 
a  had  got  a 
(1  place  with 
iv  negro  boy 
luld  there  ite 
juld,  in  fact, 
uman  family 
iiteiit  on  tin' 
U  the  eircuin- 
erfeit  iniUK'y. 
-'ed  intent  uf 
ar?;  and  four 
ohativf  force 
hen,  with  the 
(iui'>ri(iii  of 
L'Mt  i>  iiu'iint. 
r^     (V'rtaiiily 
ieariiftl  jiulgc 
ej)t'ii(h'nt  evi- 
of    law,  that 
se    cannot    he 
stiiict  otl'fiisc. 
jid,  tluMvl'orc. 
iousse  as  any 
ie    liUngiuaiil. 
entirely  iiidr- 
ner  killed  and 
evideuei'   alto- 
intent,  so  tar 

degree  'i  The 
general  intent 
■  ami  preniedi- 
the  statute,  or 

'.  ^eel^s  to  ho 
old   that   "tliu 


573 


evidence  is  open  to  your  consideration,  if  at  all,  only  so  far  as  it 
may  seem  to  you  to  bear  upon  the  character  of  the  honiicide  of 
Josie  Langmaid;  oidy  as  it  may  bear  upon  the  question  whether 
she  was  murdered  by  the  prisoner  in  perpetrating,  or  attempting 
to  perpetrate  rape."     The  intent,  then,  which  it  is  claimed  this 
evidence  was  admissible  to  establish,  was  an  intent  to  perpetrate, 
or  attempt  to  perpetrate,  the  crime  of  rape  upon  Josie  A.  l.ang- 
maid  at  the  time  he  murdered  her.     But  an  intent  t(»  perpetrate 
i-ape,  or  to  attempt  the  perpetration  of  that  crime,  is  not  wjiat 
the  statute  requires  to  make  the  killing  murder  in  the  first  degree. 
The  most  that  can  be  said  is,  that  intent  may  constitute  an  ele- 
ment in  those  crimes,  as  in  most  others.     To  meet  the  re(piire- 
ment  of  the  statute,  the  act  as  well  as  the  intent  must  be  shown. 
The  whole  crime  of  perpetrating,  or  attempting  to  perpetrate, 
rape  must  be  made  out,  and  that  includes  all  questions  of  intent 
that  may  be  involved.     Was  he  in  the  act  of  perpetrating  or 
attempting  t^  perpetrate  rape  at  the  time  he  did  the  killing? 
To  this  the  state  said  yes ;  the  prisoner,  no.     Here  was  a  clear 
and  distinct  issue  ;  just  as  clear  and  just  as  distinct  as  though 
there  had  been  nothing  else  in  the  case.     The  state  charged  rape, 
or  an  attom])t  to  commit  that  crime,  as  the  basis  of  their  claim 
that  the  verdict  should  be  murder  in  tlie  first  degree.     This 
charge  they  must  prove,  or  the  claim  based  upon  it  fails.     The 
question   is,  how  is  it  to  be  proved?     What  is  the  rule  of  evi- 
dence to  be  applied?     Is  evidence  to  be  received  upon  the  trial 
that  W(»uld  be  inadmissible  if  tlie  charge  were  rape  alone?     If 
M(,  upon  what  ground?     What  principle  of  law,  or  logic,  or 
Immanity,  will  admit  evidence  to  prove  rape  when  the  conse- 
quence of  a  finding  against  the  prisoner  is  death,  and  exclude 
the  same  evidence  when  the  consecjuence  is  only  loss  of  liberty  ? 
I  do  not  know  wdiether  the  argument  for  the  state  holds  that  a 
distinction    in   this   respect  should    be    made.     Certainly,   the 
ingenuity  and  industry  of  the  attoriu^y-general  have  failed  to 
])oint  out  any  ground  upon  wdiich  evidence  that  would  be  inad- 
missible to  prove  rape  upon  the  trial  of  an  indictment  for  that 
crime  ah»ne,  can  be  received  to  prove  rape  when  charged  on  the 
trial  of  an  indictment  for  murder  in  the  first  degree,  and  relied 
on  by  the  state  as  an  essential  clement  of  that  offense  under  the 
statute.     And  I  confess  it  is  impossible  for  me  to  imagine  the 
shadow  of  a  reason  upon  wddch  such  a  claim  could  be  sustained 
were  it  put  forth.     What,  then,  is  the  question  presented  by  this 


674 


AMERICAN  CRIMINAL  REPORTS. 


M 


1 


'i  i 


exception  ?  Clearly,  no  other  than  this  :  was  evidence  that  the 
prisoner  committed  rape  npon  Julienne  Ronsse,  in  Canada,  in 
1871,  legally  admissible  to  show  that  he  cuiuniittcd  or  attempted 
to  commit  rape  upon  Josie  A.  Laiiginaid,  at  Pembroke,  in  1875? 
There  was  no  question  as  to  the  defendant's  ])hy,sical  srrenji;th 
and  ability  to  conunit  the  crime  ot"  rape.  By  no  retiiunnent, 
therefore,  can  State  v.  Knapp,  45  N.  II.,  148,  be  said  to  apply. 
There  is  no  room  nor  ocea.sion  to  argue  that  the  actual  pL'r|)L'tra- 
tion  of  rape  upon  one  wonum  tends  to  show  phy.'^ical  stri'iiirth 
sufficient  to  commit  the  same  crime  upon  another.  No  such  con- 
necting link  is  in  the  ease.  The  simple  naked  question  is  that 
just  stated,  namely,  can  evidence  that  he  committed  rape  upon 
one  woman  be  received  as  evidence  from  which  the  jury  may  find 
that  he  committed  rape  upon  another? — the  two  events  being 
entirely  independent  and  distinct — no  way  connected  in  time,  or 
place,  or  circumstances,  and  we  cannot,  in  my  judgment,  suffer 
that  question  to  be  changed  in  form,  or  to  be  covered  up  and  dis- 
guised by  vague  and  general  observations  as  to  the  matter  of 
intent,  however  astute  and  plausible,  without  imminent  danger 
of  losing  our  way  in  a  wilderness  of  fallacy  and  error.  The 
answer  to  tliat  question  is  to  be  sought  for  in  the  recognized 
authorities  of  the  common  law ;  and  I  must  say,  that  if  there  is 
any  break  in  those  authorities,  any  want  of  unanimity  in  the 
answer  which  they  give,  I  have  failed  to  discover  it.  Doubtless 
some  of  the  cases  to  which  we  have  been  referred  run  pretty 
near  the  line.  But  no  court  has  yet  said,  to  my  knowledge,  that 
the  commission  of  one  crime  is  legal  evidence  of  the  connnission 
of  another,  when  there  is  no  connection  of  time,  or  place,  or  cir- 
cumstance, or  intent  between  the  two,  ex(!{!pt  that  the  commission 
of  the  iirst  teixls  to  show  a  heart  capal)le  of  committing  the 
second. 

This  very  question  was  answered  in  the  same  way,  as  it  seems 
to  me,  by  the  learned  jndge,  when  he  said:  "  It  is  a  fundamen- 
tal principle  of  law,  that  evidence  that  a  defendant  comnnttcd 
one  offense  cannot  be  received  to  prove  that  he  connnitted 
another  and  distinct  offense." 

But  it  is  nevertheless  argued  on  behalf  of  the  state  (if  I  have 
not  wholly  misapprehended  the  drift  of  the  argument),  that  the 
evidence  was  admitted  because,  cm  matter  of  fact^  its  natural 
tendency  was  to  produce  conviction  in  the  mind  that  the  prisoner 
committed  rape  upon  his  victim  at  the  time  he  took  her  life. 


BTA.TB  e.  LAPAGE. 


575 


ice  that  the 

Canada,  iu 
>r  uttctiiptcd 
ke,  ill  1875? 
cal  srroiitrth 

roliiK'ineut, 
id  to  apply, 
iial  pei'pctra- 
ical  btri'iiifth 
S^o  sucli  coii- 
stioii  is  tli;it 
J  rape  upon 
ury  may  find 
sveiits  being 
1  in  time,  or 
^ment,  sutlor 
1  up  and  dis- 
ho  matter  of 
ineiit  diiiiii;er 

error.  Tlie 
le  rec'o;;'nized 
it  if  there  ia 
iinity  in  the 
.  Uoul)tles8 
I  run  pretty 
iwledfjfe,  that 
i  commission 

place,  or  cir- 
'  ('ommissitin 
imittinj^  the 

',  as  it  seems 
a  fundamen- 
it  committed 
committed 

te  (if  I  have 
nt),  that  the 
,  its  natural 
the  jirisoner 
took  her  life. 


The  learned  attorney-general  says :  "  The  question  of  fact  here 
is,  whether,  on  those  grounds  of  natural  law.  natural  reason,  and 
human  experience,  upon  which  such  a  question  of  fact  mast  be 
decided,  the  intent  with  which  the  defendant  assaulted  Julienne 
Rousse  is  capable  of  affording  any  light  on  the  intent  with  which 
he  assaulted  the  deceased.  *  *  *  It  will  be  admitted,  I 
suppose,  that  every  intelligent  person,  untrammeled  by  technical 
rules,  will  coiu-nr  in  the  opinion  of  the  circuit  court.  And  the 
question  being  one  of  pure  fact  unmixed  with  law.  and  there- 
fore not  subject  to  technical  rules,  on  what  ground  will  anv  one 
dissent  from  the  unanimous  judgment  of  the  rest  of  mankind?" 
And  further,  that  unanimous  jiid<rnient  "is  the  spontaneous  and 
irreversible  judgment  of  every  grade  of  intellect  that  has 
appeared,  or  is  likely  to  appear,  in  this  state  »,.f  existence.  It  is 
an  involuntary  and  unavoidable  perception  of  the  inherent  and 
self-evident  relations  of  conduct  and  intention,  a  mental  revela- 
tion as  natural  as  memory,  and  as  trustworthy  and  unanswerable 
as  consciousness." 

I  shall  not  undertake  to  deny  this.  If  I  know  a  man  has 
broken  into  my  house  and  stolen  my  goods,  I  am  for  that  reason 
more  ready  to  believe  him  guilty  of  breaking  into  my  neighbor's 
house  and  committing  the  same  crime  there.  We  do  not  trust 
our  property  with  a  notorious  thief.  We  cannot  help  suspecting 
a  man  of  evil  life  and  infamous  character  sooner  than  one  who  is 
known  to  bo  free  from  every  taint  of  dishonesty  or  crime.  We 
naturally  recoil  with  fear  and  loathing  from  a  known  murderer, 
and  watch  his  conduct  as  wo  would  the  motions  of  a  beast  of 
prey.  When  the  community  is  startled  by  the  commission  of 
some  great  crime,  our  first  search  for  the  perpetrator  is  naturally 
ijirected,  not  among  those  who  have  hitherto  lived  blameless 
lives,  but  among  those  whose  conduct  has  been  such  as  to  create 
the  belief  that  they  have  the  depravity  of  heart  to  do  the  deed. 
This  is  human  natuiH! — the  teaching  of  human  experience. 

If  it  were  the  law,  that  everytiiing  which  has  a  natural  ten- 
dency to  lead  the  mind  towards  a  conclusion  that  a  person 
iharged  with  crime  is  guilty  must  be  admitted  in  evidence 
;ii;;ainst  him  on  the  trial  of  that  charge,  the  argument  for  the 
state  would  doubtless  be  hard  to  answer.  If  I  know  a  man  has 
once  been  false,  I  cannot  after  that  believe  in  his  truth  as  I  did 
ttoforo.  If  I  know  he  has  committed  the  crime  of  perjury  once, 
I  more  readily  beliovo  ho  will  commit  the  same  awful  crime 


■l:p; 

R'i  i  ■?' 

R4f'!  '• 

^^Bite          "ft 

^^^f  '');     I 

f  >! 

d|g/^ 

^K 

'i 

m 

If^ 


rf-^S- 


lit 


676 


AMERICAN  CRIMINAL  REPORTS. 


ac;ain,  and  I  cannot  accord  the  same  trust  and  confidence  to  his 
statements  under  oath  tliat  1  otlierwise  should.  Yet,  docs  the 
law  permit  tlie  credit  of  a  witness  to  be  iin])eaclied  \>y  sliowiiiir 
individual  acts  of  lalsehood?  We  do  not  and  we  cannot  beliove 
a  known  liar  t!ie  same  as  we  believe  a  known  man  of  truth. 
Whj,  then,  ouf^ht  not  evidence  showing  that  a  witness  has  lied 
on  any  particular  occasion  to  be  received,  in  order  that  we  may 
weis^li  the  credit  of  his  testimony  by  rules  derived  from  huinuii 
nature  and  experience,  such  as  we  naturally  and  instinctively 
apj)ly  in  the  other  affairs  of  life  ? 

Suppose  the  general  character  of  one  charged  with  crime  is 
infamous  and  degraded  to  the  last  degree,  that  his  life  has  been 
nothing  but  a  Succession  of  crimes  of  the  most  atrocious  aiul 
revolting  sort,  does  not  the  knowledge  of  all  this  inevitably  carry 
the  mind  in  the  direction  of  a  conclusion  that  he  has  added  tlie 
particular  crime  for  which  he  is  being  tried  to  the  list  of  those 
that  have  gone  before?  Why,  then,  should  not  the  prosecutur 
be  permitted  to  show  facts  which  tend  so  naturally  to  produce  a 
conviction  of  his  guilt?  The  answer  to  all  these  questions  is 
plain  and  decisive  :  The  law  is  otherwise.  It  is  the  law  that 
the  prisoner  shall  be  presumed  innocent  until  his  guilt  is  proved. 
It  is  the  law  that  his  bad  character  shall  not  be  shown  l)y  the 
state  until  he  has  put  that  matter  in  issue  by  attetnpting  to  sIkjw 
good  character  for  himself.  It  is  the  law  that  the  credit  of  a 
witness  shall  not  be  impeached  by  showing  specific  instances  of 
falsehood  against  him.  And  it  is  the  law  that  evidence  of  the 
commission  of  one  crime  shall  not  be  received  to  show  the  com- 
mission of  another  when  there  is  no  connection  between  the  two. 
Whether  the  law  in  this  respect  is  wise  or  unwise,  whether  it 
accords  with  human  reason  aiul  experience,  whether  it  alfoids  too 
great  protection  to  the  criminal  or  too  little  to  the  community, 
are  not  questions  with  which  we  have  to  do.  It  has  been  thought 
that  to  confront  a  man  on  trial  for  a  crime  that  involves  no  inoiv 
than  his  liberty  and  property  with  every  act  of  his  former  life 
and  require  him  to  purge  himscilf  from  the  suspicion  of  unilr 
which  nuiy  be  raised  by  the  testimony  of  witnesses  to  indivichial 
instances  of  alleged  wrong-doing,  would  bo  not  only  opl>re.s^?ive 
and  unfair,  but  arbitrary  and  inhuman. 

The  rules  of  the  comiiu>n  law  in  reference  to  the  detection  and 
punishment  of  crime,  which  are  the  growth  of  ages,  and  enilKKJy 
the  practical  wisdom  and  experience  of  many  great  and  learned 


mm 


STATE  V.  LAPAGE. 


577 


lence  to  his 
fet,  docs  tlie 
.  hy  sliowiiifj; 
.nnot  believe 
ail  of  trutli. 
11C88  has  lied 
;liat  we  may 
from  liumun 
instinctivelj 

'itli  crime  is 
life  lias  been 
itrocious  and 
vitably  carry 
IS  a<l(le(l  the 
list  of  those 
lie  prosecutor 
to  produce  a 
questions  is 
the  law  that 
lilt  is  proved, 
howii  by  the 
)tiii<^  to  show 
L'  credit  of  a 
instances  of 
K'lute  uf  the 
()W  the  coni- 
veen  the  two. 
e,  whether  it 
it  alfords  too 
a  comniiinity, 
been  thoii;j;ht 
IveB  no  nmro 
former  life 
(!ion  of  yiiilt 
to  indivi(hial 
ily  op[)res»ive 

detection  and 
,  and  embody 
,t  and  learned 


men,  carry  upon  every  paj^e  unmistakable  evidence  that  they 
were  devised  as  well  to  shield  the  innocent  as  to  punish  the 
guilty.  Throughout  they  recognize  the  fact  that  innocent  men 
may  be  accused  of  crime.  A  highly  wrought  condition  of  the 
public  mind,  the  popular  horror  and  indignation  that  arise  upon 
the  commission  of  a  dreadful  crime,  are  not  favorable  to  the  calm 
and  dispassionate  application  of  a  just  and  humane  law.  They 
do  not  always  leave  the  vision  clear.  But  po{)ular  clamor,  how- 
ever loud,  cannot  be  permitted  to  invade  this  place  without 
imperiling  the  most  sacred  rights  of  the  innocent  as  well  as  the 
guilty.  The  rule  whicii  we  apply  in  the  trial  of  a  wretch  who 
haa  ravislied  and  killed  an  innocent  girl,  and  then,  with  the  incar- 
nate spirit  of  a  tieiid,  torn  and  cut  and  mutilated  her  body  in  a 
way  that  causes  the  blood  to  curdle  and  the  heart  to  rise  in 
almost  uncontrollable  rage,  is  the  same  rule  which  wo  must  apply 
in  the  trial  of  the  innocent  victim  of  a  wicked  and  audacious 
conspiracy,  or  of  one  who,  without  fault,  has  l)ccome  entangled 
in  a  mesh  of  circumstances  whi^'h  threaten  an  innocent  life. 

I  think  the  admission  of  the  testimony  of  Julienne  Rousse  was 
error,  because  it  violated  the  fniidiimental  principle  of  law,  that 
evidence  that  a  defendant  comiiiitted  one  olfeiise  cannot  be 
received  to  prove  that  he  committed  another  and  distinct  ojTense. 
The  other  exceptions,  1  think,  should  Ite  overruled,  for  the  rea- 
sons given  by  the  attoiMiey-gi'iiei-al  in  his  brief. 

Smith,  J.  The  jury  wen;  instructed  that  the  testimony  of 
.InlieniU!  Rousse  should  be  considered  by  them  only  so  far  as  it 
might  seem  to  them  to  bear  upon  the  (piestion  whether  .Fosie 
j/ingmaid  was  murdered  by  the  prisoner  (if  they  should  find 
from  otlur  evidence  that  he  did  murder  her)  in  perpetrating  or 
attempting  to  perpetrate  rape.  The  question  at  once  arises 
whether  her  evidence  had  any  legal  tendency  to  prove  the  char- 
acter of  the  homicide. 

It  was  correctly  stated  by  the  presiding  judge  at  the  trial  to  be 
"a  fiuidamenlal  principle  of  law,  that  evidence  that  a  defendant 
committed  one  ollense  cannot  be  received  to  prove  that  he  coni- 
niitted  another  and  distinct  olfense."  There  are  seeming  excep- 
tions to  this  rule,  as  when  guilty  knowle<lge  is  an  iiigiedient  of 
the  crime,  or  the  intent  with  whicdi  a  particular  act  is  done  is  mate- 
rial. These  exce[)lion8  have  been  very  clearly  classified  by  the 
chief  justice,  and  1  shall  not  attempt  to  go  over  the  same  ground, 
Vol.  11.— 37 


i 


578 


AMERICAN  CRIMINAL  REPORTS. 


fcH     ' 


'     i! 


Hi 


In, 


r^'V 


except  incidentally,  in  what  I  may  have  occasion  to  say.  The 
exceptions  will  all  be  fonnd,  I  think,  to  bo  governed  by  prin- 
ciples that  exclude  this  case  from  their  operation. 

The  great  objection  to  admitting  such  evidence  is  the  injustice 
that  would  be  done  thereby,  which  is  very  forcibly  stated  by 
Allen,  J.,  in  Coleman  v.  People^  55  N.  Y.,  90 :  "  The  general 
rule  is  against  receiving  evidence  of  another  offense.  A  person 
cannot  be  convicted  of  one  offense  upon  proof  that  he  conmu'ttod 
another,  however  persuasive  in  a  moral  point  of  view  siicli  evi- 
dence may  be.  It  wouhl  be  easier  to  believe  a  person  gniit}  of 
one  crime,  if  it  was  known  that  he  had  committed  another  of  a 
similar  character,  or,  indeed,  of  any  character;  but  the  injustice 
of  such  a  rule  in  courts  of  justice  is  apparent.  Tt  would  lead  to 
convictions  u])on  the  particular  charge  nuide  by  ])roof  of  other 
acts  in  no  way  connected  with  it,  and  to  uniting  evidence  of 
several  offenses  to  produce  conviction  for  a  single  one." 

It  is  always  competent  for  the  government  to  introduce  evi- 
dence of  any  facts  tending  directly  to  show  an  evil  intent,  or 
from  which  such  evil  intent  may  be  justly  and  reasi>nably  infer- 
red ;  but  all  proof  in  relation  to  transactions  not  intimately  and 
directly  connected  with  the  particular  accusation  against  the 
defendant,  or  with  the  evidence,  or  in  necessary  explanation  of 
the  evidence  introduced  in  support  of  the  charge  contained  in 
the  indictment,  is  irrelevant  and  inadmissible:  t't>in.  r.  7)irh'r- 
man,  10  (iray,  198.  In  that  case  the  rule  is  laid  down  that  such 
evidence  should  have  a  peculiar  and  intimate,  if  n(»t  als(»a?i  insei> 
arable  connection  with,  and  tending  to  explain  and  characterize, 
the  act  in  issue  diarged  agai.ist  tliu  prironer,  and  is  only  adn-is- 
sible  on  the  question  of  intent. 

So  in  Colli.  >\  Cmiiphell,  7  Allen,  542,  it  was  held  that  snch 
evidence  is  inadmissil)le  where  the  oiTeiise  charir<!d  and  that 
offered  to  be  proved  are  distinct. 

In  our  own  case  of  Sfiife  v.  Urii/on,  15  ]SI.  II.,  171,  it  was  very 
clearly  held  that  it  is  not  competent  to  show  that  the  respniKiciit 
had  a  tendency  tf)  commit  the  offense  with  which  he  was  cliari^vd. 

The  charge  made  by  the  state  is,  that  this  respondent  killed 
the  deceased  in  perpiitrating  or  attempting  to  perpetrate  a  rapo 
upon  her.  As  having  some  tendency  to  show  that  h(M'oniiiiitted 
or  attem|)te(l  to  commit  a  rape  upon  Josie  Langniaid,  the  state 
was  permitted  to  show  that  four  years  and  more  previously  lie 
had  committed  a  rape  upon  Julienne  Kousse,  in  Canada.     Had 


STATE  T.  LAP  AGE. 


579 


the  testimony  any  Riicli  tciidencj?  There  was  ohvionsly  no  con- 
nection wliatever  between  tlie  two  offenses  or  transactions,  cither 
in  -tlie  persons  upon  wlioni  the  crimes  were  coniinittetl,  or  in  the 
places  where  or  times  wlien  committed.  Tlie  evidenct;  of 
Julienne  Eousse,  at  most,  would  only  show  that  the  respondent 
was  depraved  enoujih  to  conunit  the  crime  of  rape,  or  that  lie 
possessed  a  lustful  desire  in  his  heart  which  he,  on  that  occasion, 
did  not  hesitate  to  gratify  by  violent  means. 

But  how  does  the  fact  that  the  respondent  committed  a  rape 
more  than  four  years  previously,  in  Canada,  upon  another  person, 
have  any  teiulency  to  show  the  intent  with  which  he  killed  Josie 
Langiiiaid?  It  is  not  claimed  that  he  killed  her  to  enable  him 
to  commit  a  rape;  the  rape  preceded  the  killing,  and  the  killing 
was  done  to  conceal  the  rape. 

Sup|)ose  the  respondent  had  committed  only  the  crime  of  rape 
upon  Josie  Langmaid,  and  then  had  spared  her  life,  1  think  no 
case  can  be  found  that  would  authorize  the  state,  upon  the  trial 
of  an  indictment  against  the  respondent  for  the  rape,  to  give  ia 
evidence  the  rape  committed  upon  another  person  more  than 
four  years  previously.  No  case  of  a  more  mai-ked  and  distinct 
oiTense,  as  to  time,  place,  victims  and  circumstances,  can  be 
fouml.  How,  then,  does  such  evidence  become  any  more  rele- 
vant when  the  trial  is  upon  an  indictment  for  killing  while  com- 
mitting a  rape  ? 

Lord  Manstield  has  expressed  the  rule  in  these  apt  words: 
"When  an  act,. in  itself  indifferent,  becomes  criminal  if  done 
with  a  particular  intent,  then  the  intent  must  be  proved  and 
found;  but  when  the  act  is  in  itself  unlawful,  the  proof  of  jus- 
tification or  excuse  lies  on  the  defendant,  and  in  case  of  failure 
thereof,  the  law  implies  a  criminal  intent." 

Thus,  upon  the  charge  of  passing  counterfeit  money,  pnjof 
that  the  respondent  knew  it  was  counterfeit  is  necessary,  as 
showing  the  intent  with  which  it  was  passed.  Upon  the  chari>e 
of  obtaining  gooils  under  falser  pretenses,  proof  of  fraudulent 
intent  is  Jiecessary.  Upon  the  charge  of  murder,  the  killing 
being  ]>rovc(l,  the  malice  is  implied  in  the  absence  of  anycjxplaii- 
ation  by  the  ju-isoner  of  the  act.  In  this  case  there  was  no  ctiii- 
nection  whatever  iietween  the  rape  of  .lulienne  Mousse  in  is"! 
in  Caiuida,  and  the  murder  of  Josie  Langmaid  in  New  Hani|v 
shire  in  1875.  Tliero  can  be  no  pretense  that  they  are  continu- 
ous parts  of  one  transaction  ;  that  when  the  rape  was  committed 


680 


AMERICAN  CRIMINAL  UEPORTa 


mm-- 


fe^    V, 


tii^ 


■(1^, 


upon  JiilicDiic  ItouHse,  in  1871,  the  prisoner  liad  any  desiirn  to 
coinmit  a  rape  ujxdi  or  to  umrder  Josie  Langmaid,  or  any  other 
Woman,  in  IST;").  The  two  acts  are  so  wholly  distinct  and  .sep- 
arate, that  when  the  prisoner  formed  the  design  of  conimittiiiu;  a 
rape  upon  Julienne  Kousse,  and  carried  that  desii^n  into  effect, 
in  1871,  he  did  not  and  could  not,  as  a  part  of  that  evil  <lesii,fn 
and  act,  or  as  a  consequence  thereof,  have  then  prenuHlituted  thy 
murder  of  Josie  Lungnuiid,  or  the  perpetration  of  rape  upon 
her. 

No  point  is  better  settled  than  that  the  state  caiinot  give  evi- 
dence of  the  bad  character  of  the  res])ondent,  unless  he  shall 
first  put  his  character  in  question  by  introducing  evidence  in 
support  thereof.  As  the  only  effect  of  the  state's  introduciiiig 
evidence  of  another  rape  by  the  respondent  is  that  it  tended  to 
show  that  he  possessed  a  disposition  to  commit  that  particular 
crime,  a  disposition  which  would  incline  him  to  the  per|)etrati()u 
of  rape  whenever  the  opportunity  might  occur,  how  dues  such 
testimony  differ  from  that  of  evidence  as  to  the  prisoners  had 
character,  before  he  has  elected  to  put  it  in  question,  and  that, 
too,  by  introducing  proof  of  an  isolated  fact? 

The  whole  answer  to  the  position,  that  the  evidence  of  Juli- 
enne Rousse  was  relevant  to  the  issue  tried,  is  that  it  docs  not 
show  or  tend  to  show  that  the  prisoner  perpetrated  or  attempted 
to  perpetrate  a  rape  upon  Josie  Langiuaid.  Proof  that  he  cdin 
mitted  a  rape  in  ('aii:ida.  four  years  previously,  upon  Julienne 
flousse,  shows  what  f  Not  that  he  then  had  any  design  or  intent 
til  perpetrate  a  rape  r(»ur  years  afterwards  upon  another  wuiiiaii 
whom  he  had  never  seen  or  heard  of,  or  iii  a  place  two  hundred 
miles  distant  where  he  had  never  been;  not  that  he  had  tlicii 
fornicd  a  design  to  rape  and  murder  women  whenever  he  might 
have  opportunity  ;  not  that  he  had  ever  before  or  since  commit- 
ted that  crime;  but  that  the  defendant  had  a  disposition  to  com- 
mit the  crime  of  rape  four  years  previously.  No  one  will  pro- 
tend that  evidence  that  the  prisoner  had  committed  another 
murder,  in  Canada,  or  Texas,  or  Euro])e,  could  be  shown  on  tliis 
trial.  One  cannot  be  convicted  of  murder,  by  showing  that  lie 
has  at  some  time  and  somewhere  else  committed  another  mnnler; 
or  of  larceny,  by  showing  that  he  has  cunimitted  the  ciinio 
before,  and  thei-elore  has  an  evil  disposition  inclining  liini 
towards  that  particular  crime. 

The  trouble  with  the  position  of  the  state  is  that  it  is  not  a 


ill™, 


STATE  e.  LAPAGE. 


681 


desi'irii  to 
any  other 

t  aiid  M'|)- 
iiiiiittiim'  a 
into  elToc^r, 
;vil  dosij,'!! 
tlitatt'd  tlie 
rape   upon 

f,  f!;ive  evi- 
SB  he  eiiall 
vidence  in 
ntroduoing 

teiidt!(l  to 
t  particular 
erpctrution 

does  such 
toner's  had 
I,  and  that, 

I'e  of  Jnli- 
lit  dot's  ii(»t 
attempted 
it  he  ciiiii 
II  Julioiiiio 
n  or  intent 
er  woman 
o  hntuh't'd 
e  had  tlicn 
r  he  mifjlit 
CO  commit- 
on  to  coni- 
e  will  pro- 
I'd   another 
wn  on  tills 
li^  that  ho 
er  innnlcr; 
the  crime 
inin<^    him 

it  is  not  a 


question  of  mot/m  or  itiU/tf.  Certaitdy.  conimittiiii;'  a  rape  in 
(lanada  in  1871  would  not  sh(»w  any  motive  for  cdminitting  a 
rape  in  New  llaiupshire  in  hSTn  ;  nor  does  it  dischjse  any  intent 
eo  to  do.  Evidence  ttmdino;  to  prove  collateral  facts  is  admissible 
only  when  it  has  a  natural  tinidency  to  estai)lisli  the  fact  in  con- 
troversy, or  to  corroborate  other  direct  evidence  in  the  case : 
Com.  V.  Merriam,  14  1^'ck.,  518.  So,  in  (Jam.  v.  Ferrigan,  44 
Penn.  St.,  88(5,  in  a  trial  for  murder,  evidence  that  an  adulterous 
intercourse  between  the  wife  of  the  deceased  and  the  prisoner 
had  existed  and  continued  to  near  the  time  of  the  liomicide  was 
received,  on  the  ground  that  one  crime  furnished  a  motive  foi- 
the  other.  In  People  v.  Woofi,  3  Parker  Crim.  Cas.,  681,  which 
was  a  trial  for  murder,  proof  of  other  crimes  tlian  that  alleged, 
hut  connected  with  it  by  unity  of  plot  and  design.,  and  influenced 
by  a  single  motive,  was  held  admissible. 

In   State  v.  lienton,  15  N,  H,,  174,  Gilclirist,  J.,  very  aptly 
remarked :     "  Where  a  person  is  charged  with  an  offense,  it  is 
important  to  him  that  the  facts  laid  i)efore  the  jury  should  con- 
sist ex(dnsively  of  the  transaction  which  forms  the  subject  of  the 
indictment,  which  alone  he  can  be  expected  to  be   prepared  to 
answer.     It  is,  therefore,  not  competent  for  tlie  prosecutor  to 
give  evidence  of  facts  tending  to  prove  another  distinct  offense, 
for  the   ])nrpose   of  raising  an  inferentre  that  th(!  prisoner  has 
coiinnittt'd  the  crime  in  (piestion.     Nor  is  it  competent  to  show 
that  lie  has  a  tendency  to  commit  the  otfense  with   which   he  is 
charged.     Thus,  on    a   prosecution   for  an   infamous  olVcnsc.  an 
admission  by  the  pi-isoiier  that  he  liad  committed  sucii  an  (jifetise 
at  atiotlier  time  was  held  to  have  been  properly  rejected  :     Hex 
r.   Co/e.  citeil    1    I'h.   on   Ev.,  499  (8th  ed.)     The  case  of  the 
respondent  is  to  bi'  tried  upon  its  own  merits.     *     *      *      It  is 
argm-d  that  reference  nniy  be  made  to  what  was  done  on  a  for- 
mer day,  that  this  transaction  may  then  be  compared  with  that, 
and  thus  may  acijnire  a  certain  character.     But  then,  if  found 
guilty,  he  would  be  so,  not  so  much  because  what  he  did  was 
wronirful  in  itself,  but  because  his  conduct  on  this  occasion  was 
like  his  conduct  on  some  ])revious  occasion.     *     *     *     By  com- 
paring one  with  the  otiier,  we  establish  the  guilt  of  the  respond- 
ent by  arguing  in  a  circle.     But  this  is  to  be  shown  by  proof  of 
what  lie  did  on  tlie  present  occasion." 

So,  in  Aa.v/  Kingxtdu  i\  'J'oh'Jr.  4S  "N.  II..  57,  which  was  an 
action  against  the  owner  of  a  dog  alleged  to  have  been  ecmcerned 


!i 


<i 


11 


1*2 


-r»|-p: 


,  I 


iim  1' 


5-lf.fj' 


582 


AMERICAN  CRIMINAL  REPORTS 


in  killiiiir  slioep,  Porley,  C.  J.,  said  (p.  05):  "We  are  not 
ac',quaiiitt*(l  witli  any  rule  of  evidence  wliich  will  allow  tlie  cliar- 
acter  of  the  (lo<;,  or  tlie  faet  that  he  had  killed  or  worried  slicen 
before,  to  be  admitted  as  evidence  that  lie  did  the  daniai;e  com- 
plained of  in  this  suit.  To  show  that  he  did  this  mischief,  it  is 
not  competent  to  prove  that  he  hud  done  similar  mischief  before 
more  than  it  would  be  to  prove  that  a  defendant  sued  for  an 
assault  and  battery  had  beaten  other  men  before,  or  the  same 


man. 


J II  State  V.  I*reficott,  33  N.  H.,  212,  which  was  an  indictment 
for  keepini"^  a  gaming-house,  the  allegation  in  the  second  count 
was  confined  to  a  single  day,  and  it  was  held  that  the  government 
could  not  ])rove,  for  the  purpose  of  charging  the  defendant  on 
that  count,  that  the  crime  was  committed  on  more  than  one  day, 
although  evidence  covering  a  longer  time  would  be  admissible 
for  the  purjwse  of  showing  what  character  the  house  had  on  the 
particular  day  when  it  was  sought  to  prove  that  the  offense  was 
committed. 

In  State  v.  Wentworth,  37  N.  II.,  197,  evidence  that  the  pris- 
oner placed  on  the  railroad  track  obstructions  other  than  those 
for  which  the  indictment  was  found  was  held  competent,  upon 
the  ground  that  the  acts  were  so  connected  that  they  might  be 
regarded  as  being  the  continuation  of  the  same  transaction.  But 
the  fundamental  rule,  that  the  evidence  of  another  distinct 
offense  could  not  be  shown  for  the  purpose  of  raising  an  infer- 
ence that  the  prisoner  has  committed  the  crime  with  which  he 
ifi  cliarwd,  was  distinctlv  recognized. 

The  testimo?iy  of  the  other  witnesses  excepted  to  is  free  from 
the  objection  made  to  that  of  Juli(MUU!  Kousse.  Thev  all  tcstitiod 
to  facts  which  tcMidcil  to  show  that  the  respondeiir  was  forming 
in  his  mind  a  plot  t(»  coinniit  the  crime  of  rape  upon  some  one 
in  the  vicinity  of  the  ])lace  of  this  homicide.  No  lustful  desire 
or  particular  animosity  or  malice  against  Josie  Langmaid  need 
be  shown.  She  became  the  victim  of  his  lustful  ])assion,  and  lii.s 
evil  designs  were  consummated  in  the  attack  which  thipriveti  her 
of  life. 

P)Ut  because  of  the  admission  of  the  testimony  of  Julicinie 

Rousse,  there  must  be 

A  new  trial  granted. 


McNAIR  V.  STATE, 


683 


^e  are  not 
)W  tilt;  char- 
oi-ried  slieop 
iuniaije  eom- 
iscliicf,  it  is 
jliief  before, 
sued  for  an 
Jr  the  same 

indictment 
econd  count 
j^overnment 
L'fendaiit  on 
uui  one  day, 
J  admissible 
)  had  on  the 

offense  waa 

lat  tlic  pris- 
tlian  those 
)etent,  upon 
y  miijjlit  be 
action.  But 
ler  distinct 
iir  an  iiifer- 
h  which  he 

is  free  from 

111!  test! lied 
vas  f«)i'iiiiii<i[ 
n  sonic  one 
istful  desire 
iimaid  need 
iioii,  and  his 
l(!|)rivc(l  her 

of  Julienne 
granted. 


MoNatu  v.  State. 

(53  Ala.,  453.) 

Rapr:    Force— Erroneoun  chwrg«, 

Porcels  an  essential  ingredient  in  tlio  crimo  of  rape,  and  a  cliar^^o  tliat  if  the 
defendant  intended  "to  j,niitify  his  jxission  upon  lii(^  pernon  of  the 
female,  either  by  force  or  hy  Hur])rm,  and  against  her  conHcnt,  then  he  ig 
guilty  as  charged,"  is  erroneous. 

Mannino,  J.  In  ZewtH  v.  The  State  (30  Ala.,  64),  decided  in 
1857,  a  prosecution  of  a  negro  slave  for  rape,  or  attempting?  to 
couunit  rape,  by  ])ersonating  the  liusband  of  a  married  white 
woman,  and  so  effectinj?,  or  endeavoring  to  effect,  illicit  sexual 
intercourse  with  her,  this  court  said  : 

"It  is  settled  by  a  chain  of  adjudications,  too  long  and 
unbroken  to  be  now  shaken,  that  force  is  a  necessary  ingredient 
in  the  crime  of  rape. 

"The  only  relaxation  of  this  riUe  is,  that  this  force  may  be 
constructive. 

"  Under  this  relaxation  it  lias  been  held,  that  where  the  female 
was  an  idiot,  or  had  been  rendered  insensibh!  by  the  use  of  drugs 
or  intoxicating  drinks,  *  *  *  *  ^^\^^,  „.,,„  incapable  of 
consenting,  and  the  law  implieil  force;"  in  support  of  which 
jiropositiuns  authorities  were  cited.  And  it  was  further  lield, 
that  where  the  sexual  intercourse  was  had  with  the  consent  of 
the  woman,  "  although  that  consent  was  procured  by  fraudulent 
personation  of  her  husband,  there  was  neitlutr  actual  nor  construc- 
tive force,  and  such  act  does  not  a;iii)Uiit  to  the  ci'ime  of  rape." 
It  is  not  easy  to  conceive  of  a  case  in  whi(th  an  act  of  this  sort 
could  be  more  properly  said  to  have  been  actiomplished  by 
'■surprise." 

Yet  it  was  decided,  as  we  have  seen,  that  it  would  not  amount 
to  a  rape,  and  further,  that  if  uiisiuutessfid,  the  ollVinder  would 
not  be  gnilty  of  an  atteini)t  to  commit  ra|»(;,  if  he  did  not  intend 
to  overjwwer  the  woman  by  force,  if  nec(!ssary.  (This  decision 
led  to  enactments  to  meet  such  a  case.) 

The  olfender,  in  the  case  before  us,  was  a  youth  fourtcfcn  and 
one-half  years  old,  and  the  f(!male  was  a  girl  of  about  the  same 
age.  She  was  in  bed  in  the  same  room  in  which  three  or  four  of 
her  sisters  were  also  sleeping.     Uel'endant,  through  a  window 


i^'- 


« 


'^\ 


r^t 


n 


584 


AMERICAN  CHIMINAL  REPORTS. 


tliat  V'l.s  iiailoil  u]).  broke  into  aiul  ciitcred  the  room,  aliout  two 
lioui's  after  inidiiiiilit.  lU-iiii;  aroused  b_v  liis  jarriiii;  ai,'aiiist  licr 
bed,  and  her  foot  beiiiy'  broiiL,dit  into  contact  ^vi1■ll  liis  naked  jht- 
Bon,  pbe  sereamed  and  ahiriried  the  liousehold.  and  he  escaped 
throiii^li  the  window.  The  indictment  against  liini  was  for 
breaking  into  and  entering'  a  dwellini;  lionse  witli  intent  to  com- 
mit rape,  and  (in  a  separate  count)  with  intent  to  conmut  a 
felony.  The  breaking  into  and  entering  were  clearly  proved 
and  the  court  charged  the  jury,  among  other  things,  that  if  tliis 
was  done  "  with  the  intent  upon  his  part  to  gratify  liis  passion 
upon  the  person  of  the  female,  either  by  force  or  hy  foifjifixfi, 
and  against  her  consent,  then  he  is  guilty  as  charged"  in  the 
count  alleging  the  intent  to  commit  a  rape. 

According  to  the  reasoning  in  Lewis  v.  The  State,  it  cannot 
be  maintained  that  tliis  charge  was  correct.  It  plainly  implies 
that  the  crime  of  rape  may  be  committed  without  force,  either 
actual  or  constructive;  whereas,  not  only  has  it  always  been  held 
that  there  must  be  force,  but  the  short  forms  of  indictment,  in 
which  nothing  is  contained  that  was  not  held  to  be  essential,  pre- 
scribed by  the  code  of  this  state  for  that  crime,  and  the  assault 
with  intent  to  commit  it,  expressly  use  the  word  forcihiy  as 
necessary  in  descril)ing  those  offenses :  W.  C,  808,  801),  forms 
Nos.  7  and  15. 

The  very  question  presented  by  this  record  has  been  decided 
in  other  states,  in  cases  of  greater  aggravation,  and  in  which  the 
parties  accused  were  negroes,  and  the  females  white  persons.  In 
CharlcHv.  The  State  {^  Eng.  Ark.,  389),  the  teslimony  of  the 
principal  witness,  a  JMiss  Cond)s,  was:  "That  about  four  o'clock 
in  the  morning,  as  she  was  lying  asleep  with  four  other  little 
girls,  she  was  awoke  by  some  one  wlio  took  hold  of  her  by  the 
shoulders,  and  tried  to  turn  her  over ;  that  she  was  lyiJig  with 
her  face  toward  the  other  girls  ;  that  he  made  an  efl'ort  to  get 
over  her;  that  she  threw  out  lier  hand,  and  discovered  tlie  per- 
son to  be  a  man  and  partly  undressed  ;  that  she  then  I'aised  the 
alarm,  and  called  for  help,"  etc. 

The  judge  wdio  delivered  the  opinion  of  the  court,  says:  "In 
the  case  of  Rex  v.  Williams  (32  Eng.  (>)m.  L.  U.,  524),  it  was 
held  that  in  order  to  find  a  prisoner  gnilty  of  an  assault  with 
intent  to  commit  a  rape,  the  jury  must  be  satisfied  that  the  jirisoner, 
when  he  laid  hold  of  the  prosecutrix,  not  oidy  desii'cd  to  gratify 
his  passion  \ipon  her  person,  but  that  he  intended  to  do  so  at  all 


■•-! 


McNATR  t.  STATE. 


685 


1,  aliout  two 

iij^iiiiist  luT 
«  iiaki'd  pcr- 
lie  escaped 
111  M'as  fur 
tent  to  coin- 
j  coiiiTiiit  a 
rly  provecV 
tiiat  if  tliis 
■  his  passion 
hi/  fiHt'jirisfi^ 
;ed"  in  the 

ie,  it  cannot 
inly  implies 
Force,  either 
'8  been  lield 
lictment,  in 
sential,  pre- 

tlie  assault 
forcihly   as 

801),  forms 

cen  decided 
t)  wliich  the 
lersoiis.  Ill 
lonj  of  the 
four  o'clock 
other  little 
her  hy  the 
lyiiii;  with 
fl'ort  to  iret 
red  tlie  per- 
1  raised  the 

says :  "  In 
524),  it  was 
assault  with 
he  prisoner, 
d  to  ijratifv 
do  60  at  all 


events,  and  notwithstanding  any  resistance  on  her  part.  In  the 
case  of  Com.  v.  F!<:l<ls,  a  free  negro  (4  Leigh,  648),  which  was 
an  iiidictiiieiit  for  an  attempt  to  ravish  a  white  woman,  the  jury 
found  a  s])ecial  verdict  —  that  the  prisoner  did  not  intend  to 
have  carmd  knowledge  of  the  fenude  as  charged  in  the  indic^t- 
ment,  by  force,  but  that  he  intended  to  have  such  carnal  knowl- 
edge of  her  when  she  was  asleep,  and  made  the  attemjit,"  etc., 
"but  used  no  force  except  such  as  was  incident  to  getting  in  bed 
with  her,  and  stripping  up  her  night-garment  in  wliich  she  was 
sleeping,  which  caused  her  to  awake.  Upon  that  state  of  fafts 
the  general  court  of  Virginia  was  of  opinion  that  he  ought  to 
have  been  acquitted."  And  upon  these  authorities  the  Supreme 
wourt  of  Arkansas  held  that  the  negro  Charle?  could  not,  upon 
the  facts  in  the  case  before  them,  be  found  guilty  of  an  assault 
with  intent  to  commit  rape. 

The  same  court,  in  a  subsequent  case  {Pleasant  v.  The  State, 
13  Ark.,  360),  of  a  very  aggravated  assault  by  a  slave  upon  a 
white  woman,  referring  to  the  case  of  Charles  v.  The  State, 
fiipni,  and  commenting  on  the  nature  of  the  crime,  say  :  "  The 
better  authority  would  seem  to  be,  that  if  the  man  accomplish 
his  ])urj)ose  by  fraud,  as  where  the  woman  supposed  he  is  her 
husband,  or  obtained  possession  of  her  pei'son  5y  surj}rise,  with- 
out intendhuj  to  use  foiri\  it  is  not  i-ape,  because  one  of  the 
essential  ingredients  of  this  otfeiise  it.  wanting.  So,  where  force 
is  used,  but  the  assailant  desists  u])on  resistance  being  made  by 
the  woman,  and  not  because  of  an  interruption,  it  cannot  be  said 
that  it  was  his  intention  to  commit  rape." 

The  charge  of  the  court  in  tlu^  case  now  before  us,  was  not  in 
consonance  with  the  almost  uniform  current  of  decisions  in 
respect  to  the  using  or  pur]iose  to  use  force  by  the  accused,  in 
accomplishing  the  gratification  of  his  passion  in  such  a  case,  and 
was,  thei-efore,  erroneous. 

The  judgment  is  reversed,  and  the  cause  remanded,  but  the 
jirisoner  must  remain  in  custody  until  discharged  by  due  course 
of  law. 

Note.— All  the  authorities  are  agreed  upon  the  general  principle  that 
force  is  an  indispensable  element  in  the  crime  of  rape.  It  is  stated  l>.v  Whar- 
ton (2  Whart.  Cr.  Law,  sec.  1144,  7th  ed.)  that  there  is  some  authority  for 
tlie  doctrine  that  fraud  or  surprise  may  supply  the  place  of  force,  but  an 
examination  of  the  oases  referred  to  will  show  tliat  in  this  i)articular  that 
Earned  author  has  fallen  into  an  error.     In  Hiaie  b.  Shepard,  7  Conn..  54,  the 


n    • 


f*"! 


;mJ, 


.1 

[1  'f 


il:  la; 


'^ 


:■<*■     i-    : 


586 


AMERICAN  CRIMINAL  REPORTS. 


prisoner  was  convicted  ol'  uu  uitciupt  lo  coininit  rape,  where  it  appeared  that 
be  got  into  bed  witli  a  married  woman  wiiile  slie  was  aslec  p,  and  had  ron- 
D'Ction  witli  her,  but  it  is  stated  in  the  rase  lliat  she  did  not  awake  or  dis- 
cover tlie  fact  until  the  act  liati  been  consuiniu;ited,  and  it  does  not  ap|)eur 
upon  wliat  theory  the  case  was  given  to  the  jury.  In  a  similar  case,  lieg.  v. 
MayiTs,  12  Cox  Cr.,  311  (S.  C,  1  Green.  Cr.,  lilT),  the  jury  were  inslrueteil 
that  "if  a  man  gets  into  bed  witli  a  woman  while  she  is  asleep,  and  he  linows 
she  is  asleep,  and  he  has  connection  with  lier,  or  attempts  lo  <li)  so  wliile  in 
that  stale,  he  is  guilty  of  rape  in  the  one  case  and  tlie  attempt  in  tlie  other." 
This  cnH)  proceeds  upon  the  ground  that  being  uncouscicms  and  incapable  of 
assent,  the  law  presumes  the  act  to  be  against  her  will.  But  in  Com.  «.  Fields, 
4  Okiigh  (Va.),  C48,  it  was  held  that  if  the  prisoner  simply  intended  to  have 
connection  with  the  prosecutrix  while  she  was  asleep  the  act  would  not  be 
rape.  Where  a  woman  is  violated  while  unconscious,  whether  from  sleep, 
from  liquor  or  the  effect  of  drugs,  or  from  any  cause,  the  act  amounts  to 
r,  pe.  It  was  so  held  in  Coin.  v.  Burke,  105  Mass.,  376,  where  the  defendant 
had  connection  with  tlie  prosecutrix  while  she  was  utterly  senseless  and 
incapable  of  consenting  from  licpior.  To  the  same  effect  is  liefj.  v.  VavipHn, 
1  Cox  Cr.,  220.  It  is  held  that  if  the  woman  is  idiotic  to  that  degree  that  she 
has  no  will  at  all.  the  act  is  rape,  although  she  makes  no  resistance:  lieg.  «. 
Kyiiit,,  2  Cox  Cr. ,  115.  Hut  even  in  such  a  case,  it  seems  that  if  the  woinaa 
yields,  or  assents,  from  a  men!  animal  instinct,  no  rape  is  committed:  Reij. 
V.  lianrtt,  12  Cox  Cr.,  198  (S.  C,  1  Green.  Cr.,  314);  Corinrell  v.  People'.  13 
Mich.,  427.  The  doctrine  is  well  settled  that  where  the  act  of  sexual  inter- 
course is  consented  to,  the  crime  of  rapc^  is  not  committed,  even  if  such  con- 
sent is  the  result  of  surjirisi;  or  fraud:  Ucij.  v.  Barrow,  11  Cox  Cr.,  191;  a 
case  where  the  woman  sujipd.sed  the  prisoner  was  her  husbiuul  until  the  act 
Lad  been  consiimniated,  ami.  tlu^'efore,  a>senle(l.  Don  Muriin  i\  People,  215 
Mich.,  ;).■)(»,  a  case  where  the  girl  was  led  to  consent  under  a  pretense  that  the 
act  was  n(;ce.ssary  medical  treatment. 


BuoWN    V.    Pi:ol'LE. 

(3«  Mich.,  203.) 

RAi'ii;:     Force — AKucnt — Frroneoun  e/ionjr, — DeiniU  of  rnmplnint. 

On  a  trial  for  rape,  the  admission  in  evidenet;  of  the  stalemeiit  of  the  sister 
of  the  prosecutrix,  thai  the  latter  niadi' eomijlaint  to  her  the  next  niorii- 
ing  thai  IIk;  iirismicr  on  trial  and  another  i)ersou  named  forced  licr  in  her 
chamber  the  evening  before,  is  held  not  error. 

Where  on  a  trial  for  raiie  the  act  of  intercourse  is  admitted,  and  llie  vital 
question  is  whellKtr  it  was  by  force  and  against  the  will  of  the  proseeu 
trix,  the  jury  must  he  salislled  beyond  a  reasonable  doubt  that  she  did 
not  yield  her  consent  during  any  part  of  the  act;  and,  considering  the 
place,  time,  occasion  and  surrounding  circumstances  disclosed  liy  this 
case,  it  was  important  thi'  jury  should  scrutinize  the  facts  bearing  on  this 
point  very  closely. 


m 


j. 


mmt 


BROWN  V.  PEOPLE. 


687 


appeared  that 
and  liiid  t'on- 
,  iiwake  or  dis- 
les  iKJt  appear 
iir  case,  lieg.  v. 
•ere  instructed 
mid  he  knows 
do  so  wliilo  in 
t  in  tlie  otiier." 
id  incapable  of 
,  Com.  I).  Fields, 
ended  to  have 
would  not  be 
ler  from  sleep, 
ict  amounts  to 
the  del'endaut 
senseless  and 
kfj.  V.  Cajiiplin, 
degree  that  she 
tanee:  lieg.  e. 
t  if  the  woman 
lunitted:  lie;/, 
ell  V.  People,  13 
(f  sexual  inter- 
en  if  such  con- 
ox  Cr.,  191;  a 
id  until  the  act 
ni  V.  People,  'Jl) 
retcnse  that  the 


mplnint. 

!iit  of  the  sister 
the  next  nioni- 
irccd  her  in  her 

d,  and  llie  vital 
i)f  the  proseeu- 
jht  tiiat  shedid 
considerini;  the 
s('l(isc(l  by  this 
bearing  on  this 


A  charge  to  the  jury  in  a  rape  case,  that  if  they  should  find  respondent  used 
force,  and  complainant  resisted  so  far  as  slic  was  able  to  under  the  cir- 
cumstances, they  should  tind  him  guilty,  even  though  they  found  slie  at 
last  yielded,  is  held  erroneous  and  misleading;  the  term  "circumstances," 
as  here  used,  may  have  been  understood  as  including  weakness  of  the 
will;  and  tlie  term  "yicldi'd"  as  meaning  an  assent  to  the  consumma- 
tion or  completion  of  tlie  act;  and,  if  there  was  a  yielding  in  that  sense, 
there  was  no  case  to  support  a  verdict  of  guilty. 

The  evidence  on  the  part  of  the  people  being  that  the  prosecutrix  never 
yielded,  and  that  on  tlie  part  of  the  accused  that  she  made  no  resistance, 
but  assented  from  the  beginning,  there  was  no  basis  for  a  charge  on  the 
hypothesis  of  her  having  lirst  made  resistance  but  afterwards  yielded. 

Error  to  St.  Joseph  circuit. 

0.  ./.  Fast,  S.  C.  Coffinhernj  and  J.  B.  Shipman,  for  plaintiff 
in  error. 

Otto  Kii'chner,  attorney-general,  for  the  people. 

GuAvi;s,  J.  Fliiiiitiil  in  error  was  lately  convicted  of  the 
crime  of  rape,  cliiirijjed  to  liave  been  committed  in  the  evening 
of  June  iit),  ISTO,  on  Mary  Jane  Miller,  who  was  between  seven- 
teen and  eiji);hteen  years  of  aoje.  She  had  been  residing  with  her 
parents  near  Hiirr  Oak,  but  some  ten  days  or  a  fortnight  before 
this  occuri'i'iice  hail  been  taken  into  the  family  of  Mr.  Henry  W. 
Laird  to  do  housework  tor  wages. 

A  married  sister,  ]\[i's.  I'aktT,  resided  within  about  half  a  mile. 

At  the  time  in  que.*.tion  IMr.  Laird's  family  embraced  several 
'young  men  engaged  tis  farm  hands,  and  among  them  were  hie 
two  sons,  the  ])laintitf  in  error,  and  two  others. 

The  ])rose('Utri.\  alleged  that  on  the  evening  mentioned  she 
went  to  her  lied-room  upstairs,  fastened  the  door,  retired  to  bed 
and  soon  fell  asleep,  but  awoke  in  a  short  time  and  found  plain- 
tilf  in  error  in  bed  with  her,  and  that  he  then  and  there  out- 
x\\<^v<\  her. 

The  details  of  her  relation  need  not  be  repeated  here.  She 
further  idli'g<-d  that  jilaiiitilf  in  error  til'ti'r  consummating  the 
ac.t  left,  iind  that  in  a  very  short  time  (Tilltert  Laird  also  entered 
the  room  and  forciljly  violated  her  jierson  ;  tluit  she  made  no 
attein])t  to  leiivi>  the  room  and  made  no  outcry;  that  she  went  to 
her  sister's.  Mrs.  I'likcr's.  the  next  morning  and  mtide  eoniplaint. 

Till'  plaiiitill'  in  error  ami  (Jilliei't  Liiird  respectively  admitted 
the  acts  of  intercourse,  but  claimed  they  were  with  her  assent  or 
ac(pnescence. 


Wh 


>iitt 


If 


I' 


ti  n 


m 


H 


ml' 


■    H       1 

n 


.fti- 


iiii 


'■ill 


K 


Hi'.'.vt.    ,      », 


68f 


AMERICAN  CRIMINAL  REPORTS. 


Tlie  case  depended  upon  wlietlier  elie  \vas  forced  or  not. 
Tlieve  was  no  other  question  in  dispnte.  An  objection  is  inade 
that  the  conrt  allowed  ]\Irs.  liaker  to  reh\te  the  particulars 
detailed  to  her  by  the  prosecutrix  when  complainiiij;  to  iicr  tiie 
next  niorninp^.  In  view  of  the  shape  assumed  by  the  case  and 
the  character  of  the  testimony  of  Mrs.  Baker,  of  wliii-h  com- 
plaint is  made,  I  think  the  objection  hardly  tenable. 

As  reported  in  the  record,  Mrs.  Baker  barely  testified  that  the 
prosecutrix  claimed  that  the  plaintiff  in  error  and  Gilbert  Laird 
forced  her  the  eveninj?  before  in  her  chamber.  It  may  be  tliat  a 
Btatement  of  this  kind  micjht  not  be  proper  in  some  cast's,  lnit  I 
am  not  prepared  to  say  it  was  eri'or  to  admit  it  here. 

There  is  no  occasion  to  dwell  upon  it :  Burt  v.  The  Stati',  'i3 
Ohio  St.,  804. 

As  already  observed,  the  vital  question  for  the  jury  was, 
■whether  the  admitted  act  of  intercourse  was  by  force  and  aixainst 
the  will  of  tlie  prosecutrix,  or  whether,  on  the  other  hanti.  it  was 
by  her  will  and  consent.  The  jury  M'cre  requireii  to  be  satisfied 
beyond  a  reasonable  doubt  that  there  was  no  consent  by  tlie 
prosecutrix  during  any  part  of  the  act,  before  they  could  tind 
the  plaintiff  in  error  guilty.  And,  considering  <h(^  ])la('t'.  the 
time,  occasion  and  the  other  circumstances  disclosed  by  the 
record,  it  was  very  important  that  the  jury  should  scnitiiii/.c  the 
facts  bearing  on  this  point  very  closely :  Com.  v.  Mr  linaiilil. 
110  Mass.,  405;  Shite  v.  Burgdorf,  53  Mo.,  65;  J'^uj,!,'  r. 
Brow7i,  47  Cal.,  447. 

The  circuit  judge  gave  several  instructions  on  this  part  of  the 
case,  and  most  of  wliich  were  unobjectionable.  One.  h.iwcvcr. 
in  view  of  the  facts,  was  im])roper  and  nnsleading.  It  wa,-  in 
these  terms:  "If  you  find  that  respondent  used  force,  and  iliat 
the  complaining  witness  resisted  so  fur  as  she  was  alilc  to  iiudcr 
the  circumstances,  you  should  find  him  guilty,  even  if  yoii 
should  find  that  the  complaining  witness  at  last  yielded.'' 

In  the  first  place,  this  charge  is  not  clear.  What  was  inteiidi'd 
to  be  included  in  the  term  "circumstances,"  as  soiiietiiiiig  to 
prescribe  limits  to  resistance  or  excuse  further  resistance,  is  not 
very  certain.  Tlu;  jury  nuiy  have  taken  the  expression  as 
including  weakness  of  the  will. 

Again,  the  term  "yiehU'd,"  as  here  used,  is  not  free  from 
ambiguity.  The  jury  may  have  regarded  it  as  meaning  an  assent 
to  the  consumnuiticjn  or  coin])letion  of  the  act.     And,  if  there 


rood  or  not. 
tioii  IP  Tiindt" 
e  particulars 
\r  to  licr  thf 
tlic  case  and 
which  coiii- 

itic>(l  that  the 
xilhcrt  Laird 
nay  he  that  a 
;  oa>c's,  liiit  I 

T/te  Stat<\  L'8 

le  jiirv  was, 
a  and  against 
hand,  it  was 
o  l)i>  satisfied 
iisent  l)y  tlie 
ey  c'oiihl  tind 
k;  ])hi('('.  the 
k>sed  by  the 
scrntiiii/.i'  the 

.     Mrlh;nlhL 

> ;    / ''  iijili-  I'. 

s  part  ol'  the 
)n(',  hiiwcMT. 
r.  It  \\a.-  in 
Krcc.  and  that 
iliK'  to  under 
I'ven  if  you 
do(L" 

was  intended 
s(tMii'tiiin<i;  to 
Btanee.  is  not 
expression    ii8 

<>t  fi-ee  from 
liiijif  an  assent 
(\.nd,  if  tliore 


GOSHA  V.  STATE. 


589 


was  a  yielding  in  tliat  sense,  there  was  no  case  to  support  a  ver- 
dict of  guilty. 

A  further  objection  to  this  instruction  is,  tliat  there  was  no 
evidence  wliicli  fairly  authorized  it.  The  evidence  on  the  part 
of  the  people  was  that  the  prosecutrix  never  yielded,  and  that 
given  by  the  plaintiff  in  error  was  that  she  made  no  resistance, 
but,  on  the  contrary,  assented  from  the  beginning.  There  Wius 
hence  no  basis  in  the  evidence  for  the  hypothesis  contained  in 
this  charge. 

Some  other  points  are  suggested,  but  they  are  not  important. 
For  the  error  in  the  charge,  the  judgment  must  be  reversed  and 
a  new  trial  ordered.  An  order  will  be  entered  also  for  the  sur- 
render of  the  defendant  to  the  sheriff  of  the  county  of  St. 
Joseph,  in  order  to  allow  such  further  proceedings  as  may  be 
necessary. 

The  other  justices  concurred. 


GosHA  V.  Stats. 

(56  Geo.,  86.) 

Rape  :    Connent  of  child  under  (en —  Venue  must  he  proven. 

The  law  conclusively  piebumes  that  a  femivlo  child  under  ten  years  of  age 
cannot  and  docs  not  consent  to  an  act  of  carnal  intercourse,  and  it  is  not 
error  to  so  instruct  the  .iury. 

The  venue  nuist  lie  proven  as  laid.  Where  the  only  evidence  was  tliut  the  act 
()ct;urred  vvitliin  lil'ly  yards  of  a  liouse  in  Suiulur  county,  the  evidence 
was  held  iusiilUcicnt,  as  the  liouse  might  have  been  within  twenty  yards 
of  the  county  line. 

In  this  ca-;c  the  court  gives  elfect  to  a  technical  objection  more  readily, 
because  of  the  undue  severity  of  the  sentence  imposed. 

Jackson,  J.  The  defendant  was  indicted  and  found  guilty  of 
rape,  lie  moved  for  a  new  trial,  and  error  is  assigned  here  on 
two  grounds  ;  first,  that  the  court  erred  in  charging  that  a  feinale 
child  tinder  ten  years  of  age  eould  not  consent  to  se.xiiai  inti-r- 
course,  so  as  to  show  that  the  act  was  not  done  forcibly  or  against 
her  will,  there  being  some  pmot  (d'  her  consent;  and,  secondly, 
because  the  venue  was  not  siitliciciitly  proven;  and  these  are  the 
two  questions  the  record  before  us  iiniiies. 

1.     As  to  the  first  (question,  the  rule  at  common  law  is  well 


690 


AMERICAN  CRIMINAL  REPORTS. 


||!  r' 


;s'. 


established,  and,  we  tliink,  founded  in   wisdom.     See  4  Black- 
stone  (Cooley),  210,  21 '2. 

It  has  also,  in  ert'ect,  received  the  sanction  of  this  court; 
Stephens  v.  The  State,  11  Georgia  Keports.  238.  We  shall  not 
disturb  it. 

That  rule  is  that  her  tender  years  concludes  the  question — she 
cannot  consent. 

2.  In  respect  to  the  second  point,  we  think  that  it  does  not 
appear  affirmatively,  with  sufficient  certainty,  that  the  crime  was 
committed  in  the  county  of  Sumter.  There  is  no  positive  proof 
in  the  record  of  the  precise  locus — the  place  where  it  occurred. 
It  was  within  fifty  yards  of  a  residence,  and  that  residence  was 
within  tlie  county  of  Sumter ;  but  there  is  no  proof  whether 
on  the  line,  or  near  tlie  line,  or  in  the  center,  or  in  what  part  of 
the  county  that  residence  was.  It  niipht  have  been  within 
twenty  yards  of  the  line.  We  are  constrained,  therefore,  to 
grant  a  new  trial  in  this  case  on  this  ground,  and  do  so  the  more 
readily  because  we  think  that  the  court  below  was  rather  severe 
in  the  penalty  inflicted,  twenty  years  in  the  penitentiary.  The 
defendant  was  only  some  sixteen  years  old  ;  the  girl  probably  did 
consent;  and,  while  the  law  renders  that  no  justification  as  she 
was  under  ten,  yet,  perhaps,  it  should  so  mitigate  the  crime  as  to 
make  the  punishnKiiit  lighter.  At  all  events,  we  give  him 
another  opportunity  of  being  heard  before  the  jury,  and  of 
appeal  to  the  tender  mercies  of  the  court  below.  The  ])artie8 
all  belong  to  the  colored  po]nilation  of  our  state,  who,  owing  to 
their  ignorance,  as  a  general  rule,  should  have  justice  adminis- 
tered to  them  tempered  with  much  mercy. 

Judgment  reversed. 


People  v.  Ardaga. 

(51  Cal,  871.) 

Rape  :    Evidence. 

person  clmrped  with  rnpc  ciinnol  be  convicted  on  the  unrorrobnrntctl 
evidence  of  the  ])rosecutrix,  wlio  luiniitH  tluit  she  is  unchiistc,  and  wlio 
chftrgcJH  the  defendant  with  havinjj  Uxkvn  lier  from  lier  room  in  tlic  iiii^lit, 
where  another  person  was  sleeping,  and  with  liaving  talien  her  Iwo  miles 
on  horseback,  wliere  he  committed  the  crime,  and  with  having  then  car- 
ried her  back  to  her  room. 


Jl 


PEOPLE  V.  APDAfJA. 


591 


See  4  Blaek- 


nt  reversed. 


Anpoiil  from  the  comity  court,  coinity  of  Los  Anfroles. 

Tlie  inflictinont  clinrirfMl  Isinail  Romero,  Crecencit*  Moiitez, 
and  tlie  dufeiulaTits.  with  the  crime  of  nipe  coiimiittcd  on  the 
person  of  DelHnii  Lciva,  on  the  22d  of  November,  1875,  in  tlie 
coutity  of  Los  Anju^eles.  Tlie  prosecutrix,  DelHna.  was  the  only 
witness  calhnl  for  tlie  people.  She  testified  tliat  she  went  from 
Los  An<j;ek>s  to  Wilmiiiicron  on  a  pleasure  trip,  and  stoi)ped  at 
the  house  of  Mannela  Iliielina,  and  that  she  slept  with  her  child, 
and  that  another  bed  in  the  same  room  was  occupied  by  Frank 
Silver ;  that  aliout  twelve  o'clock  at  niij;ht,  while  she  was  asleep, 
three  men  broke  into  the  room  and  took  her  from  the  bed ;  that 
she  did  not  awake  nntil  they  had  carried  her  to  the  door,  when 
she  screamed  ;  that  one  of  the  men  held  a  pistol  pointed  at  her 
head,  and  threatened  to  kill  her  if  she  did  not  keep  still ;  that 
they  put  her  on  iiorseback,  and  carried  her  in  her  nij^ht-dothes 
two  miles,  when  the  four  men  each  had  intercourse  with  her  by 
force ;  and  that  they  then  carried  her  back  to  the  room. 

She  admitted  that  she  was  living  with  Frank  Silver,  and  that 
she  had  been  living  with  him  three  years,  but  claimed  that  she 
had  been  true  to  him  since  she  liad  lived  with  him. 

She  also  admitted  that  four  persons  besides  herself  and  Silver 
were  sk^eping  in  the  house,  and  that  she  could  not  say  she  was 
virtuous.  She  further  testified  that  the  defendants  were  two  of 
the  four  men.     The  two  not  on  trial  had  not  been  arrested. 

The  defendants  were  convicted,  and  appealed  from  the  judg- 
ment and  from  an  order  denying  a  new  trial. 

Stanford  (&  Ramirez,  and  Kewen  c&  White,  for  the  appel- 
lants. 

Jo  Hamilton,  attorney-general,  for  the  people. 

By  the  cottkt.  The  defendants  were  convicted  of  rape  on 
the  nncorroborated  evidence  of  the  prosecutrix,  who  admitted 
herself  to  be  an  unchaste  woman. 

Her  story  is  so  grossly  improbable  on  the  face  of  it,  as  to  ren- 
der the  inference  irresistibh'  that  the  jury  must  have  been  under 
the  influeiit'e  of  passion  or  prejudice.  In  People  v.  Benson.  6 
Cal.,  221,  the  defendant  was  convicted  of  rape  on  the  uncorrob- 
orated but  positive  testimony  of  the  woman  alleged  to  have  been 
outraged ;  and,  in  rev((rsing  the  judgment  and  ordering  a  new 
trial,  this  court  said  that  the  story  of  the  woman  was  "so 
improbable  of  itself  as  to  warrant  us  in  the  belief  that  the  ver- 


u 


If 


^1. 

iiH. 


M 


592 


AMERICAN  CRIMINAL  REPORTS. 


diet  was  more  the  result  of  prejudice  or  popular  excitement 
than  the  calm  and  dispassionate  conclusion  upon  the  facts  by 
twelve  men  sworn  to  discharge  their  duty  faithfully.  *  *  * 
A  conv'iftiun  upon  such  evidence  would  be  a  blot  upon  the 
jurisprudence  of  the  country,  and  a  libel  upon  jury  trials."  In 
People  V.  Ilaiailton,  46  Cal.,  540,  which  was  a  similar  case,  wo 
arrived  at  the  same  conclusion,  and  reversed  the  judi^Muonr, 
observing  that  "the  ends  of  justice  demand  that  the  canst;  shall 
be  tried  anew."  We  are  of  the  same  opinion  in  the  present 
case. 

"  <•  ^gment  and  order  reversed,  and  cause  remanded  for  a  new 
trial. 


BoWEKS   V.    StATK. 

(20  Ohio  St.,  543.) 

SKDPCxroN:    Iteputntion — Specific  actn  of  lewdness — Prinkged  eommunieationt. 

Under  the  Ohio  stiitute  ajriiinst  *>.(luction  of  "any  female  of  good  repute  for 
chastity,  under  the  uice  of  eitrhteen  years,"  specific  acts  of  lewdness  and 
misconduct  on  ihe  jiuil  of  the  prosecutrix  with  others  than  the  respond- 
ent prior  to  the  nlletjed  .seduction  are  not  udmissiMe  in  evidence.  Only 
proof  of  reputiition  is  adniissihle. 

The  Oiiio  statute  against  seduction  extends  to  all  femides  under  the  aire  of 
ei,ii;hteen  years  whose  reputation  for  chastity  is  good,  whether  that  repu- 
tation is  deserved  or  not. 

A  eonnnunication  made  by  the  prosecutrix  to  her  attorney,  in  a  consultation 
with  rei^ard  to  a  bastardy  proceedinif  which  she  had  instituted,  is  privi- 
leged, and  cannot  be  given  in  evidence. 

This  was  an  indictment  for  seduction.  The  respondent 
offered  to  prove  specific  acts  of  lewdness  with  others  prior  to 
the  alleged  seduction.  The  evidence  was  rejected,  and  the 
respondent  excepted. 

The  respondent  also  gave  evidence  tliat,  prior  to  the  time  of 
the  alleged  .'^eduction  under  promise  of  marriage,  he  had  had 
sexual  interc(»urse  with  the  prosccntri.v  not  under  pi'dini.sc  of 
marriage,  atid  he  asked  the  cotirt  to  charge  that,  if  they  believed 
this,  he  should  bo  accpiitted.  The  court  refused  so  to  charge, 
and  the  respondent  excepted. 

lie  also  asked  the  prosecutrix  on  cross-examination  if  she  had 
not  admitted,  in  a  consultation  with  her  attorney  at  which  her 


BOWERS  V.  STATE. 


59;j 


J  for  a  new 


tmmunications. 


mother  was  prescJit,  that  tliere  was  no  promise  of  marriage. 
This  she  denied.  Afterwards  lie  offered  to  pr:.ve  that  she  had 
made  this  adinissioii,  but  the  court  rejected  the  evidence. 

Welch,  C.  J.  Tlie  instruction  asked  [>y  the  defendant  and 
refused  by  the  court,  and  the  rejection  of  testimony  tending  to 
sliow  spccitic  acts  of  le\v(hiess  on  the  part  of  the  prosecutrix, 
raise  tlie  same  question,  namely,  whetlier  the  protection  of  the 
statute  extends  to  all  females  under  the  aire  of  eiirhteen  whose 
rej>utaUon,  for  chastity  is  good,  or  only  to  such  as  have  deserv- 
edly acquired  that  reputation  by  a  pure  life.  It  seems  to  us  that 
the  plain  words  of  the  statute  leave  no  room  for  doubt  on  this 
question.  The  statute  provides,  "  that  any  person  over  the  age 
of  eighteen  years,  who,  under  promise  of  marriage,  shall  have 
illicit  carnal  intercourse  with  any  female  of  good  vepnfe  for 
chastity,  under  the  age  of  eighteen  years,  shall  be  deemed  guilty 
of  seduction."  Language  could  hardly  be  plainer.  It  is  the 
reputation  and  the  age  of  the  female,  and  not  her  previous  con- 
duct, that  bring  her  within  the  protection  of  the  statute.  The 
law  wisely  and  justly  accords  to  the  erring  female  a  hx-xs:  pev!- 
tentioe.  If  she  has  repciitcd  of  her  ])ast  error,  and  by  her  upright 
walk  acquired  an  iinimpcacluiljU'  ivputation  for  chastity,  the  law 
protects  her  against  tlie  man  wlio  overcomes  her  good  ivsc)Ive» 
iiy  a  promise  of  marriage.  It  is  the  purity  and  integrity  of  her 
mind,  and  not  merely  those  of  her  person,  that  the  law  designs 
to  guard  iigainst  the  attacks  of  the  seducer;  and  it  looks  alone 
to  her  general  rejxite  as  evidence  of  that  purity  and  integrity. 
We  think,  therefore,  that  the  court  was  right  in  exi-hiding  evi- 
dence of  specific  acts  of  intercourse  by  the  prosecutrix  with 
persons  other  than  the  defendant. 

Evidence  of  the  defendant's  previous  coJinection  with  her 
stands  on  a  different  basis.  Such  evidence  was  properly  admit- 
ted, not,  however,  for  the  purpose  of  impeaching  her  character, 
but  because  it  tends  to  show  that  the  criminal  act  charged  was 
not  committed  under  a  [)romise  of  marriage.  AVe  are  supported 
in  this  view  of  the  case  by  decisions  in  several  of  the  states, 
under  similar  or  analogous  statutes.  We  refer  to  11  Ind.,  4»>tl ; 
la  Id.,  40;  20  Id.,  4+;'  21  !<(.,  15;  2r>  A/.,  !Mi;  29  Id.,  2t;7 ;  26 
N.  Y.,  203. 

The  remaining  question  is,  whether  the  court  erred  in  refusing 
to  receive  evidence  of  the  alleged  admission  of  the  prosecutrix, 
Vol.  II.— 88 


m 


H  !    ' 


!l 


hi' 


fiD-t 


ii 


AMERICAN  CRIMINAL  REPORTS. 


made  in  consultation  with  her  attorney.  We  think  not.  Slio 
was  a  more  witness  and  not  a  ])arty,  and,  as  such  witness,  wn.s 
compelled  to  testify.  The  case,  therefore,  comes  clearly  within 
the  rule  in  regard  to  privile£jed  communications,  unless  the  pnis- 
ence  of  her  mother  at  the  time  of  her  interview  excludes  it. 
It  is  well  established  that  the  privile<!je  extends,  as  well  to  ('oiii- 
munications  to  or  through  an  agent,  as  to  those  made  directly  to 
the  attorney  by  the  client  in  person,  and  we  think  it  is  only  a 
dictate  of  decency  and  propriety  to  regard  the  mother  in  sucli  a 
case  as  being  present  and  acting  in  the  character  of  confidential 
agent  for  her  daughter.  The  daughter's  youth  and  supposed 
modest^^  would  render  the  presence  and  participation  of  her 
mother  appropriate  and  necessary. 

We  see  no  error  in  the  case,  and  the  motion  must  be  overruled. 

Motion  overruled. 


State  v.  Hawks. 


(43  Iowa,  181.) 
Seduction  :    tiufficiency  of  evidence. 


ten  8 


.1^ 


I 


In  this  case  the  court  determines,  as  a  mutter  of  law,  that  the  evidence  as 
detailed  in  the  opinioD  is  insufficient  to  justify  a  conviction. 

Sekvers,  Cli.  J.  A  reversal  of  the  judgment  of  the  court 
below  is  sought,  for  the  reason,  as  claimed,  that  the  verdict  is 
not  supported  by  sufficient  evidence.  The  defendant  and  tlie 
prosecutrix  were  both  unmarried,  and  the  latter  at  the  time  of 
the  alleged  seduction  and  for  some  time  previous  therc^to,  niaile 
her  home  at  the  house  of  the  parents  of  defendant,  but  in  what 
capacity  do((s  not  appear. 

The  pros(K'utrix  was  about  twenty-two  years  old,  and  tlie 
defetidant  is  presumed  to  have  beeti  several  years  older.  If  nny 
false  promises  were  made,  or  seductive  arts  or  intliiences  used 
amounting  to  seduction,  it  will  be  found  in  the  following  portion 
of  the  t(!stimon3'  of  the  prosecutrix: 

"When  we  were  returning  from  meeting  defendant  said  he 
heard  me  remark  that  I  nev(!r  intended  to  get  married,  and  lie 
wanted  me  to  promise  to  marry  him  il  uTtybody.  I  had  a  pro- 
posal from  a  widower;  defendant  wanted  me  to  promise  not  to 


t 


:  not.  Slie 
vitness,  w:is 
larly  witliin 
'ss  the  prv6- 
exelndes  it. 
cU  to  eoni- 
!  directly  to 
t  is  only  a 
■r  in  pupIi  a 
(•(Hitideiitial 
d  supposed 
;ion   of    her 

e  overruled. 
rverruled. 


STATE  V.  HAWES. 


695 


he  evidence  (is 

>f  the  court 
e  verdict  is 
lilt  and  the 
the  time  of 
ercto,  made 
5ut  in  what 

hi,  and   the 
er.     If  any 

Mcnces  used 
ing  portion 

ant  said  he 
■ied,  and  he 
had  n  pro- 
mise not  to 


marry  him,  and  T  toM  him  I  did  not  intend  to  marry  any  way. 

*  *  '^'  'IMusH  wei-e  about  three  evoniuirs  wo  sat  and 
t;dl<ed  after  tlie  family  went  to  bed.  In  November,  1870.  ho 
came  to  my  room  door  and  said  he  wanted  to  kiss  me;  I  tohl 
him  it  was  no  time  for  him  to  say  anythinji;  to  me;  that  it  was 
midnij;ht,  and  for  him  to  leave  my  room;  I  cjot  up  and  dressed. 

*  *  *  lie  took  me  home  one  time  from  the  cars,  and 
on  the  way  said  his  mother  thonjjjht  I  would  make  as  ij;o(Ml  a 
companion  as  Webster  Haven's  wife.  He  used  to  say  to  me  I 
was  the  oidy  one  he  ever  met  he  cared  anythiiifj  for.  and  lie 
intended  some  day  to  fjet  married,  and  when  he  did  he  wanted  I 
should  be  his  wife.  February  16th,  1871,  my  birthday,  we  had 
our  pictures  taken  together,  he  and  I  and  an  actpiaintance  of 
ours,  in  one  group.  *  *  *  On  the  night  of  the  7th  of 
July,  1871,  he  came  to  my  room,  and  as  I  woke  up  he  was  in 
bed.  He  grabbed  me  as  I  turned  over;  I  said,  'O,  my  Lord, 
Nornum,  I  am  a  ruined  girl.'  He  said  to  keep  still  or  I  would 
be  hurt.  I  said,  '()  Lord.'  He  said  I  ought  to  know  him  well 
enough,  that  he  would  not  deceive  me.  He  put  his  hand  on  my 
lace  aJid  kissed  tne,  and  said  for  me  to  keep  quiet.  I  had  inter- 
course with  him  that  time. 

"  lie  was  not  there  but  a  few  moments.  I  told  him  to  leave; 
!ic  said  he  would  hardly.  *  *  *  He  was  in  bed  but  a  fesr 
minutes,  about  five  or  ten.  I  recollect  his  telling  me  I  need  not 
be  uneasy,  that  he  would  not  forsake  me,  that  I  ought  to  know 
him.  I  did  not  tell  him  I  was  not  afraid  at  all;  only  a  few 
words  passed.  It  was  about  midnight.  When  he  took  hold  of 
ine  he  grabbed  me  in  his  arms;  I  didn't  mean  that  he  hurt  me. 
I  tried  to  ]Mill  away  from  him. 

"  The  second  time  he  was  in  my  room  about  midnight.  The 
night  of  .Inly  7th  he  did  not  promise  to  marry  me  ;  no  promise 
was  made,  because  I  never  came  out  and  told  him  I  would  marry 
him  until  I  wrote  that  letter  from  mother's.  I  told  him  at  tirst 
I  didn't  intend  to  marry  anybody;  afterwards  I  told  him  I 
never  should  marry  any  one  but  him ;  since  this  happened,  but 
not  before,  1  told  him  1  would  tnarry  him." 

It  is  perfectly  natural,  and  to  be  expected,  that  the  prosecutrix 
should,  as  far  as  possible,  shield  herself  and  cast  the  blame,  if 
any  there  was,  on  the  defendant.  There  should  not,  therefore, 
be  any  strained  construction  put  on  her  language,  in  order  to 
sustain  the  verdict.    On  the  contrary,  as  the  defendant  is  entitled 


596 


AMERICAN  CRIMINAL  REPORTS. 


to  the  benefit  of  all  reasonable  doubts  there  may  be  as  to  his 
gnilt,  the  Jjiniriiage  of  the  witness  should  receive  no  other  euii- 
6truction  than  its  fair  and  natural  nieantni;  may  entitle  it  to. 
The  material  in(juiry  is,  was  there  a  promise  of  marriage  exist- 
ing between  the  prosecutrix  and  the  defendant,  or  did  the  latter 
use  any  arts,  false  promises  or  seductive  influences,  whereby  or 
by  reason  whereof  the  prosecutrix  was  induced  to  yield  herself 
to  the  embraces  of  the  defendant? 

We  think  the  fair  and  reasonable  construction  of  the  evidence 
is  there  was  not.  To  make  such  out,  a  strained  or  unnatural 
construction  must  be  placed  on  the  language  of  the  witness. 
This  the  jury  were  not  warranted  in  doing  in  order  to  convict. 
The  verdict  is  not,  therefore,  supported  by  sutiicient  evidence. 

lieversed. 


Wilkinson  v.  State. 

(69  Ind.,  416.) 

Sunday  law:     Works  of  neremty. 

The  necessity  which  excuses  and  juslifles  common  lat)or  rn  Sunday  need  tioi 
be  it  physical  or  absolute  necessity.  If  the  labor  is  ncfessary.  uiulir  ilic 
circumstances  of  any  particular  case,  to  be  performed  on  Siimlay,  in 
order  to  accomplish  any  lawful  purpose,  it  is  not  prohibited  liy  the  stul 

Uti'. 

A  Iniit  i^nowcr  may  lawfully  pick  his  fruit  on  Sunday,  and  haul  it  on  the  w.iy 
to  a  Monday's  market,  if  without  such  labor  on  Sunday  his  crop  would 
1)0  lost  to  hitn  by  spoiling  before  he  could  get  it  to  a  market. 

Tli(!  defendant,  being  on  trial  for  a  violation  of  the  Sunday  law,  proved  tlinl 
he  bad  before  btien  convicted  on  his  plea  of  guilty  before  a  justice  of  tin! 
peace,  and  fined  one  dollar,  for  the  identical  offense  then  on  trial.  lhl<l, 
that  this  was  a  complete  bar  to  the  pending  prosecution. 

TTowK.  .1.     The  appellant  was  indicted  at  the  August  term, 
1877,  of  the  court  below. 

The  indictment  charirod  that,  on  the  29th  day  of  July.  1ST7, 
at  Gibson  cduiity,  Indiana,  the  aj>pellant,  who  was  at  that  tiiiio 
over  foiiiteeii  yeni's  of  aire,  said  day  being  the  first  day  of  tlic 
week.  c(Hiimoiily  called  Siiiiday,  was  i'oiiiid  uidawfiilly  at  com 
nton  labor  and  enoiiu-ed  in  his  usual  avocation,  to  wit,  th<'n  iiihI 
there  loading  and  balding  melons,  such  comtnon  labor  and  usual 
avocation  not  being  then  and  there  work  of  charity  or  necessity, 


WILKINSON  V.  8TATE. 


697 


and  the  appellant  not  I.cin^r  tlioii  ami  tliore  one  wlio  conscien- 
tiously ()l)servc(i  tlie  seventli  tjiiy  of  tlie  week  an  tlu-  Sabbath, 
nor  a  traveler,  a  family  removing',  a  \irv\n'v  of  a  foll-bridfre  or  a 
toll-gate,  or  a  ferryman,  acjtinjr  aw  stich  ;  (M)nttary  to  the  form  of 
the  statute,  ete. 

Afterward,  at  the  January  term,  187H,  of  tiie  court  below, 
the  appellant  appeared,  and,  for  ])lea  to  naid  indictment,  naid  he 
was  not  guilty;  and  the  issues  j(»ined  wen;  tric'd  by  a  jury,  and 
a  verdict  was  returned,  finding  the  appellant  guilty  as  charge*! 
in  the  indictment,  and  assessing  his  tine  in  tli('  hum  of  one  dollar 
and  fifty  cents. 

The  a])pellant's  written  motion  for  a  new  trial  was  ovcrrnled 
hy  the  court,  and  his  exception  to  this  decisiun  wa^  diilv  nwrvcd. 
and  judgment  was  then  rendered  on  tlu;  vcnlid.  from  which 
judgment  this  appeal  is  now  here  prosecuted. 

The  only  error  assigned  by  the  appclhint.  in  this  court,  is  the 
decision  of  the  conrt  beh»w  in  overruling  his  motio?i  for  a  new 
trial.  In  this  motion,  the  causes  assigtu'd  for  such  new  trial 
were  that  the  verdict  of  the  jury  was  contrary  to  law,  and  tliat 
it  "was  not  sustained  by  sufficicMit  evidence. 

It  will  be  seen  that  the  question  for  our  d(!(;ision  in  this  cause 
is  this  :  Were  the  verdict  of  the  jury,  and  tli(;  judgment  of  the 
court  below  thereon,  sustained  by  siitlicicnt  legal  cv  idiMirc?  The 
evidence  on  the  trial  is  propcjrly  in  th(!  re<'oril ;  iinil  we  liiid  it 
necessary  to  the  proper  understanditig  of  this  can-c  ami  of  our 
decision  thereof,  that  we  should  set  out  the  suli^lanc(!  of  the 
evidence  in  this  opinion. 

J^ut,  before  doing  so,  we  will  first  give  the;  scciinn  of  the  stat- 
ute under  which  the  indictment  was  found  again>t  the  ap|)i'llaiit. 
The  section  referred  to  is  the  first  section  of  an  act  entitled 
"  An  act  for  the  protection  of  the  Sabbath,  and  prnvifliiig  ])en- 
altiesfor  the  desecration  thereof,"  approved  Febniary  "jsth,  lsr>i"). 
Omitting  the  enacting  clause,  this  first  se(!tioii  reads  as  follows  : 
"That  if  any  person,  of  the  age  of  fourtcien  years  and  upwards, 
shall  be  found  on  the  first  day  of  the  week,  commonly  called 
Sunday,  rioting,  hunting,  fishing  quarreling,  at  common  labor, 
or  enffasred  in  their  usual  avocations,  works  of  cliaritv  and  neces- 
sity  only  excepted,  sucli  ])erson  shall  be  fined  in  any  sum  Jiot  less 
than  one  nor  more  tluui  ten  dollars;  but  nothing  heniin  con- 
tained shall  be  construed  to  affect  siu'h  as  conscienlioiisly  oi)servG 
the  seventh  day  of  the  week  as  the  Sabbath,  travelers,  fatidliea 


\m 


1 

■1; 

*  A 

V  ' 

t  1 

j;  1 
4' 

5 

;;,:.|a,S<«S   :g^Vi 


*^il 


i?-'>.1 
P'''! 


698 


AMERICAN  CRIMINAL  REPORTS. 


renioviiii;,  keepers  of  toll-bridujes  and  t()ll-<jate8,  and  ferrymen, 
ac-tinij  as  sueli  :"'     2  R.  S.  1S70,  p.  4s;?. 

We  will  now  ijive  tlie  evid(Mice  as  it  is  contained  in  tluj  record: 

William  KiMil)all,  a  witness  for  the  stiite.  testitied  as  follows: 
"My  name  is  William  Kiiiiljall.  I  live  in  (iihson  cunnty,  Indi- 
ana. I  know  the  defendant,  Silas  Wilkinson;  that  is  him 
(pointing  to  the  deimdant).  Have  known  liim  for  sciveral 
years.  On  the  12tii  day  of  Aui,'nst,  1S7T,  1  saw  tlie  defendant 
haulinn;  watermelons ;  that  day  was  Sunday ;  ho  was  liauling  a 
wagon-l(.ad  with  two  horse.s  ;  it  was  some  time  in  the  afternoon 
of  tliat  day  that  I  saw  liim ;  he  was  going  in  the  direction  of 
Evansville,  Indiana.  It  was  in  Gibson  county,  State  ^f  Indiana, 
that  I  saw  defendant  liauling  watermelons  on  tha'  ulay  ;  lie 
had  about  one  hundred  watermelons  in  the  wagon." 

On  cross-examination  this  witness  testified  :  "The  defendant, 
Wilkinson,  resides  upon  a  farm  about  twenty-live  or  twenty-six 
miles  from  Evansville ;  Ids  melon  j)atch  was  on  his  farm." 

The  state  then  rested. 

William  II.  Overton,  a  witness  for  appellant,  testified  as  fol- 
lows: "My  name  is  William  II.  Overton.  I  reside  in  (libson 
county,  Indiana  ;  have  lived  here  continuously  for  fifteen  or  six- 
teen years.  Am  a  farmer.  I  have  had  a  great  deal  of  experi- 
ence raising  watermelons;  I  have  raised  them  for  severid  years. 
I  know  the  defendant,  Silas  Wilkinson ;  have  known  him  for  a 
long  time ;  he  raised  a  patch  of  melons  last  season,  the  summer 
of  1877;  he  had  four  or  live  atrres  in  the  patch.  On  the  12tli 
day  of  August,  1S77,  I  was  in  his  melon  patch.  If  was  on  his 
farm,  near  the  house  in  which  he  lives;  at  that  time  there  were 
between  live  and  six  hundred  melons  in  that  patch,  oti  that  day, 
that  had  spoiled;  they  had  grown  too  ripe  and  iiad  ix-guii  to 
decay.  There  were  as  many  more  just  right  to  be  plucked  from 
the  vine.  Watermelons  will  not  last  but  a  short  timi'  after  get- 
ting ripe;  they  ought  to  be  used  at  once.  It  depends  upon  the 
•weather  largely  how  long  they  will  last.  I  have  known  thou- 
sands destroyed  in  from  twelve  to  twenty-four  hours  after  ihey 
lirst  got  ripe." 

On  cross-exannnation  this  witness  testified  :  "  Nearly  every 
one  who  raises  melons  loses  more  or  less  of  them.  There  are  a 
great  many  raised  in  the  neighborhood  where  Wilkinson  lives. 
The  reason  they  lose  them  is  because  watermelons  get  rijie  all  at 


wm 


id  ferrymen, 

II  tlu;  record : 

(1  ;is  follows: 

comity,  Iiuii- 

tliat    iri   liiiii 

for   8(!vt'ral 

he  (iL'fendaiit 

as  hauling  a 

he  afternoon 

directio!!  of 

-'   ^f  Indiana, 

ulay  ;  he 

le  defendant, 
jr  twenty-six 
farm." 

tified  as  fol- 
io in  (lihson 
if  teen  or  six- 
id  of  experi- 
leveral  years. 
n  him  for  a 
the  summer 
)n  the  12tli 
was  on  Jiis 
e  there  were 
<»n  that  <lay, 
nd  l)t';^Miii  to 
i!u(d<ed  from 
le  after  i^et- 
ids  upon  the 
cnown  thon- 
rs  after  ihey 

S'^early  every 
There  are  a 
kiiisoii  lives. 
et  ripe  all  at 


i 


i  • 


WILKINSON  V.  STATE.  $^ 

once,  and  it  is  next  to  an  impossibility  to  get  them  all  to  mar- 
ket." 

The  appellant,  as  a  witness  in  his  own  behalf,  testified  as  fol- 
lows:  "My  name  is  Silas  Wilkinson.  I  reside  in  Gibson 
county,  Indiana  ;  have  lived  in  this  county  continuously  for  the 
past  twenty-five  years.  Am  a  farmer ;  am  the  defendant  in  this 
Fuit.  In  the  summer  of  1877,  I  raised  a  patch  of  watermelons 
on  my  farm  in  this  county.  I  had  only  the  one  patcli  in  the 
summer  or  during  the  year  of  1877.  On  Sunday,  the  12th  day 
of  August,  1877,  I  started  with  a  two-horse  wagon-load  of  water- 
melons taken  from  my  patch,  for  E^  ansville,  Indiana.  Evans- 
ville  is  twenty-six  miles  from  my  farm,  Evansville  v;as  my 
market  for  my  melons  at  that  time.  On  that  Sunday  there  were 
at  least  five  or  six  hundred  melons  in  my  patch  dead  ripe  and 
reiidy  for  the  market.  There  were  at  least  as  many  more  then 
spoiled  for  the  want  of  being  plucked  from  the  vines  and  taken 
to  market.  The  12th  of  August,  1877,  was  right  in  the  middle 
of  the  melon  season,  and  they  would  get  ripe  faster  than  I  could 
liaul  them  to  market.  I  could  only  haul  about  one  hundred 
melons  at  a  load.  I  had  to  haul  them  twenty-six  miles.  I  had 
only  one  team  of  my  own.  Joel  Grigsby  had  helped  me  all  the 
week  before  until  Friday  before  this  Sunday,  when  he  was  taken 
sick.  I  tried  to  get  other  help  and  could  not.  I  hauled  all  the 
week  before,  and  all  the  week  beginning  on  August  12th,  1877. 
I  saved  the  load  of  melons  I  started  with  on  that  Sunday.  I 
lost  at  least  two  thousand  melons  that  season  because  I  was 
unable  to  get  them  to  market." 

On  cross-examination  the  appellant  testified :  "  I  loaded  up 
my  melons  on  Saturday  night  before  the  Sunday,  August  12th, 
1877.  I  started  for  Evansville  early  in  the  afternoon  of  that 
Sunday.  I  did  not  start  in  the  morning  because  there  were  rela- 
tives visiting  my  family,  and  because  I  could  reach  the  Monday 
morning  market  at  Evansville  by  waiting  until  tlie  afternoon.  I 
could,  perhaps,  have  left  home  at  midnight  on  Sunday  night, 
and  reached  Evansville  by  the  time  I  left  there  on  Monday 
morninir.  I  did  not  do  it  because  niv  team  would  have  been 
exhausted,  and  T  would  have  lost  time  on  Monday.  I  went 
within  two  miles  of  Evansville  on  Sunday.  Early  Monday 
morning,  with  a  fresh  teain,  I  drove  to  Evansville,  disposed  of 
my  melons,  and  T  started  at  once,  by  nine  o'clock  a.  m.,  for 
liome.     I  reached  home  in  time  to  load  up  another  load  for 


h>r 


«P1 

m 


ft,' ' 


600 


AMERICAN  CRIMINAL  REPORTS. 


Tuesday's  market.  I  did  not  start  with  aiiotlior  load  until  Tucs- 
da}'  morning-  early,  I  mii^ht  have  started  at  midnight,  Sunday 
wight,  reached  Evansville  by  the  time  I  started  home  on  that 
Monday,  disposed  of  my  melons,  and  returned  immediately 
home,  but  the  effort  would  have  exhausted  my  team.  I  eonli] 
liave  started  at  or  after  twelve  o'clock  on  the  night  after  the 
Sunday  in  question,  and  got  to  Evansville  about  nine  o'clock  (in 
the  Monday  morning  following,  rested  my  horses  and  started 
home  in  the  afternoon  on  the  said  Monday,  and  got  home  in 
time  to  load  up  again  and  be  ready  to  start  again  on  the  Tuesday 
following,  by  the  time  I  did  start  on  said  Tuesday,  but  it  would 
have  made  me  late  in  the  evening  on  Monday  loading  uj).  1 
could  not  make  a  load  each  day,  but  only  a  load  every  otlier  day. 
I  was  before  John  Martin,  a  justice  of  the  peace,  to  answer  to 
the  same  charge  for  which  I  am  now  being  tried.  I  then  plead 
guilty,  and  was  lined  one  dollar.  It  was  some  time  in  Septem- 
ber, 1877." 

Joel  Grigsby,  a  witness  for  the  appellant,  testified  as  follows : 
"My  name  is  Joel  Grigsby.  I  live  in  Gibson  county,  Indiana; 
have  lived  here  for  fifteen  years;  am  a  farmer.  T  know  the 
defendant,  Silas  Wilkinson  ;  have  known  him  for  several  years. 
I  have  raised  watermelons  for  several  years.  I  was  in  defend- 
ant's waternu'lon  patch  on  the  Friday  before  August  I'itli.  1ST7. 
I  had  becTi  hauling  melons  to  Evansville  all  that  week,  out  of 
that  patch  for  Wilkinson.  I  could  oidy  haul  a  load  every  two 
days.  I  would  go  down  one  day  and  back  the  iu\xt.  T  quit 
hauling  on  Friday  because  I  was  not  well.  There  were  a  great 
many  melons  then  in  the  patch  that  were  sjioiling  for  the  want 
of  being  plucked  from  the  vines  and  used.  1  should  say  tlicre 
were  iive  hundred  that  ought  to  have  been  taken  that  <lay  to 
market,  besides  a  number  that  were  already  sj)oiled  because  they 
luid  not  been  taketi  sooiu>r." 

This  was  all  the  evidence  on  the  trial  of  this  cause,  as  the 
same  appears  in  the  record.  Under  this  evidence  the  (luestion 
arises,  and  this  is  the  main  question  in  this  case,  was  there  a 
"  necessity,"  within  the  meaning  of  that  word  as  the  sanu'  Ip 
used  in  the  statute  before  cited,  that  the  appellant  should  jxt- 
form  the  common  labor  charged  in  the  indictment,  on  the  iirst 
day  of  the  week,  commonly  called  Sunday?  It  is  well  st'ttlcil, 
we  think,  that  by  the  word  "necessity,"  as  used  in  the  statute, 
is  not  meant  that  the  necessity  for  the  work  on  which  the  charge 


L 


WILKINSON  V.  STATE. 


601 


is  ])n'i]i(!atecl  should  be  a  physical  or  absolute  necessity.  Such 
labor,  oil  Sunday,  as  may  be  iieoos.sary  to  the  acconiplishinent  of 
a  lawful  j)urpos(\  tnulcr  the  circumstances  of  any  particular  case, 
cannot  be  considered  as  within  the  purview  and  prohibition  of 
the  statute  for  thv  jirotection  of  the  Sabbath. 

in  the  case  of  Morris  v.  The  Sfntc,  :>1    Ind.,  1S9,  where  the 
appellant  had  been  eiiifaired  in  liaulini;  and  boiling  sugar-water, 
on  a  certain  Sunday,  and  it  appeared  that  it  was  a  good  day  for 
the  flowing  of  the  water,  that  the  appellant's  troughs  were  full 
s  and  overflowing,  and  that  he  had  no  way  to  save  the  water  but 

by  gathering  and  boiling  it,  it  was  held  Ity  this  court  that  his 
labor  was  a  work  of  necessity,  within  the  meaning  of  the  terti> 
a«  used  in  the  statute. 

So,  also,  in  the  case  of  CrnoTcH  v.  The  Hinic  88  Tnd.,  41«?.  it 
WS18  lield  that  such  labor,  on  Sunday,  as  was  a  necessary  incident 
to  the  accomplislimetit  of  a  lawful  purpose,  such  as  the  manufac- 
ture of  malt  beer,  was  a  work  of  necessity,  within  the  meaning 
of  those  words,  as  the  same  are  used  in  tlie  law  for  the  protec- 
tion of  the  Sabbath. 

The  two  cases  cited  from  our  own  reports  are  well  supported 
by  the  decisions  of  the  courts  of  other  states,  on  statutes  similar 
to  the  statute  of  this  state.  These  decisions  are  cited  as  authori- 
ties in  our  own  cases  before  noticed,  aiul  we  refer  to  them  there 
without  again  citing  them. 

It  is  ditHcult,  if  not  impossible,  to  distinguish  the  case  at  bar, 
in  principh%  from  the  case  of  Morris  o.  The  Sftrf,',  I>efore 
referred  to.  The  melon  season,  like  the  sugar-making  season,  is 
of  but  short  duration,  "depending  on  the  season  atid  tlie 
weather."  In  this  case  it  would  seem  that  a  kind  Providence 
liad  erowiK^I  the  labors  of  the  appellant  with  a  bounteous  har- 
vest of  melons.  They  were  ripening  and  decaying  much  faster 
than,  with  the  facilities  and  labor  at  his  command,  he  could  pos- 
sibly get  them  to  market.  His  melon  patch  was  twenty -six 
miles  from  his  market.  Tie  could  only  haul  a  load  to  market 
every  two  days,  and  a  load  was  one  hundred  melons,  lie  could 
not  hire  any  assistance.  On  Sunday,  August  12th,  1877,  the 
day  mentioned  in  the  evidence,  there  were  at  least  Ave  or  six 
hundred  melons  in  his  patch,  "dead  ripe  and  ready  for  the  mar- 
ket.'" A  ripe  watermelon  in  its  season  is  a  luxury,  but  there  is 
nothing  more  "stale,  flat  and  unprofltable"  than  a  decayed  or 
rotten  melon.     Under  the  circinnstanees,  what  was  the  ai)pellant 


602 


AMERICAN  CRIMINAL  REPORTS. 


IV  ' 


\'4\ 


to  do  ?  It  seems  to  us  that  it  was  Iiis  duty,  as  a  prudent  aud 
careful  husbandnian,  to  labor  diligently  in  getting  as  many  of  his 
melons  as  he  could  into  market,  so  that  the  fruits  of  his  toil 
might  not  be  wasted  or  suffered  to  decay.  Whatever  it  was  \m 
duty  to  do  in  the  premihcs  there  was  a  moral  necessity  for  hiui 
to  do.  And,  in  the  accomplishment  of  the  main  purpose  of  sav- 
ing and  securing  the  benefit  of  his  crop  of  melons,  whatever 
labor  he  was  reasonably  required  to  do  on  Sunday,  must  be 
regarded,  as  it  seems  to  us,  as  a  work  of  necessity. 

Under  the  circumstances  shown  by  the  evidence  in  this  case, 
it  seems  to  us  that  the  labor  in  which  the  appellant  was  engaged 
on  Sunday,  August  12th,  1877,  and  for  which  he  was  indicted, 
was  a  necessary  incident  to  the  accomplishment  of  a  lawful  pur- 
pose, namely,  the  saving  and  getting  into  market  his  crop  of 
melons,  and  was,  therefore,  a  work  of  necessity,  within  the 
meaning  of  that  expression  as  tlie  same  is  iped  in  the  statute  for 
the  protection  of  the  Sabbath.  Nor  do  we  think  that  the  iiw.t 
that,  by  getting  up  at  midnight  on  Sunday  night  and  driving  all 
the  renuunder  of  the  night,  he  could  have  reached  Evansville  in 
time  for  tlie  Monday  morning  market,  made  his  labor  on  Sunday 
afternoon  any  the  less  a  work  of  necessity.  It  is  not  necessary 
to  the  protection  of  the  Sabbath  that  men  should  abuse  or  over- 
work either  themselves  or  their  horses  by  midnight  labor;  and, 
in  our  opinion,  it  is  no  desecration  of  the  Sabi)ath  to  garner  and 
secure  on  tiiat  day  the  fruits  of  the  earth,  which  would  other- 
wise decay  and  be  wasted. 

On  one  other  ground,  it  seems  to  us,  the  conviction  of  the 
appellant  in  this  case  was  clearly  wrttiig. 

By  section  ninety-seven  of  the  Criminal  Code  it  is  provided 
that,  under  the  general  issue,  "every  matter  of  defense  may  he 
proved:"  2  R.  S.  1870,  p.  3i>S.  Tudor  this  provision  it  has 
been  held,  that  a  former  conviction  for  the  same  offense  might 
be  proved  in  bar  of  the  pending  prosecution  :  Zee  v.  I'he  Sfdft', 
42  Ind.,  ir)2.  In  the  second  section  of  the  act  for  the  protection 
of  the  Sahltath,  etc.,  before  referred  to,  it  is  provided  that,  in  all 
o;ises  under  said  act,  justices  of  the  peace  and  courts  of  common 
pleas  (now  circuit  courts)  shall  have  concurrent  jurisdiction.  Of 
course,  the  record  is  the  best  evidence  of  such  former  convic- 
tion ;  but,  if  neither  party  objects,  it  may  be  proved  by  oral  evi- 
dence. As  we  have  seen,  it  was  proved,  on  the  trial  of  this 
Ciise,  l)y  the  appellant's  own  evidence,  without  objection  by  the 


prudent  aud 
s  many  of  liia 
its  of  his  toil 
ver  it  was  his 
isitj  for  him 
irpose  of  sav- 
)ns.  whatever 
lay,  must  be 

i  in  this  case, 
was  engaged 
was  indicted, 
a  lawful  pnr- 
his  crop  of 
,  within  tlie 
le  statute  for 
that  the  fact 
id  driving  all 
Evansville  in 
>r  on  Sunday 
ot  necessary 
buse  or  over- 
fc labor ;  and, 
0  garner  and 
would  other- 

ction  of  the 

is  provided 
LMise  may  be 
I'i.sion  it  lia.s 
Ifense  might 
'\  The  State. 
le  protection 
d  that,  in  all 

of  common 
liction.  Of 
mer  convic- 

by  oral  evi- 
trial  of  this 
ition  by  the 


STATE  V.  STEWART. 


603 


state,  that  he  was  tried  by  John  Martin,  a  justice  of  the  peace, 
on  "  the  same  charge"  fur  which  he  wa.s  then  on  trial,  and  that 
he  then  plead  guilty  ajid  was  lined  one  dollar.  It  seems  to  us 
that  this  former  conviction  was  a  complete  bar  to  this  ])ro.secntion. 

In  our  opinion,  the  conit  below  erred  in  overruling  the  api)el- 
lant's  motion  for  a  new  trial. 

The  judgment  is  reversed,  and  the  cause  is  remanded  for  a 
new  trial. 


Statk  v.  Stewaut, 

(Iowa.     Opinion  fllod  Oct.  28,  1879.) 

AnouTioN :    lieanondhle  douht. 

In  a  criminal  case  every  material  fact  must  be  proved  beyond  a  reasonable 
doubt;  and,  tlierefore,  an  in.structioQ  in  an  abortion  case,  tiiat  if  tlie  fact 
of  the  prc,u;nan(y  and  the  time  ami  jilace  of  tlie  alleired  crime  are  fully 
and  clearly  jirovcii,  and  it  is  proved  beyond  a  reasonal)le  doubt  that  the 
defendant  administered  druijs  or  introduced  instruments  with  intent  to 
prodiu'e  a  misearriau'e,  lie  should  be  convicted,  is  erroneous. 

An  iusi ruction  from  wliicli  the  jury  may  infer  that  a  doubt  is  not  a  reasonable 
doubt  unless  it  is  shared  by  all  the  luembers  of  the  jury,  and  that  unless 
such  a  doidil  exists  t  he  dereiidniit  should  be  convicted,  is  erroneous.  Such 
a  doubt  must  exist  before  there  can  be  an  a('(iuittal  (State  v.  liodnbach,  19 
Iowa,  154),  but  there  ouulit  not  to  be  a  conviction  so  long  as  one  or  more 
of  tlie  jurors  entertain  a  reasonable  doubt  of  the  defemlant'a  guilt. 

Ajipeal  from  Harrison  district  court. 

The  indictment  charged  that  the  defendant  "  did  unlawf idly, 
willfully  and  feloniously  administer  to  one  Surrilda  Purcell,  who 
was  then  and  there  a  ])regiiant  woman,  certain  drugs  and  sid> 
•stances,  and  did  then  and  there  unlawfully  *  *  *  use  a 
certain  instrument  *  *  *  with  intent  then  and  there  and 
thereby  to  produce  the  miscarriage  of  the  said  Surrilda  Purcell, 
sncli  miscarriiige  *  *  *  not  being  necessary  to  save  her 
life."  There  was  a  verdict  of  guilty,  judgment,  and  defendant 
appeals. 

tWrA/v///  <('!  /jV/ZA'//,  for  apiH'llant.  . 

J.  F.  McJankln.^  for  the  state. 


Skkvkus,  J.     1.     The  secoii 
jury  were  as  follows : 


(I  and  third  instructions  given  the 


rrrr 


f '    i  '■^  J; 


604 


AMERICAN  CRIMINAL  REPORTS. 


If 


if  I 


t? 


PI 


1;  « 


f  Hjl 


"  2.  There  are  in  tlie  offense,  with  wliioli  tlio  flofendant  is 
charged  as  enumerated  in  the  indictment  lierein,  the  foMowini^ 
material  allegations,  to  wit :  Fh'ftt.  That  on  or  al)out  the  first 
day  of  Novemher,  1878,  said  Surrilda  was  pregnant.  Second. 
That  the  defendant.  Stewart,  willfully  iKlininistercd  to  said  Sur- 
rilda Pnrcell  some  drugs,  or  drugs  or  substances,  with  tlie  intent 
to  produce  the  miscarriage  of  said  Surrilda  i^urcell,  or  that  he 
used  some  instrument  upon  said  Surrilda  witli  the  intent  to  pro- 
duce her  miscarriage.  Third.  Tliat  this  was  done  i»y  <h'teii(iiiiit 
at  and  within  this  county  and  state,  and  on  or  ahnut  tlie  tir.>t  day 
of  November,  1878,  and  wliile  said  Surrilda  was  |)ri'gniint. 

"If  the  first  and  third  of  the  foregoing  material  idlcgatioiisiiro 
fully  and  clearly  proven,  and  either  the  first  or  second  a\i  iMit-nr 
of  the  second  allegation  is  proven  beyond  all  reasonabU'  doubt. 
and  you  are  further  satisfied,  beyond  all  reasuiiablc  doubt,  of  tlie 
guilt  of  the  defendant,  your  verdict  should  be  guilty.  It  not  so 
satisfied,  then  your  verdict  should  be  not  guilty. 

"3.  A  rciuionable  doubt  is  such  a  doubt  as  fairly  and  naturally 
arises  in  the  minds  of  the  whole  jury,  after  fully  and  carefully 
weighing  and  considering  all  the  evidence  which  has  been  intro- 
duced herein  during  the  progress  of  the  trial,  wlu'n  viewed  in  rlie 
licrht  of  all  the  facts  and  cinjunistances  surroiindini>'  tlie  same." 

It  is  insisted  these  instructions  are  erroiu-iius.  nml  in  reliiriou 
thereto  we  have  to  say  (1),  in  order  to  constitute  the  (riinc 
charged,  Surrilda  Turcell  must  have  Iteeu  pregnant  ;it  the  time 
the  drugs  were  administered  or  instrument  used  with  intent  to 
produce  the  miscarriage.  (Iidess  the  fact  of  pregimiKv  wis 
establislu^d  beyond  a  reasonable  doid)t,  the  defendant  \\;i>  mii- 
tled  to  iin  acipiittal.  IJut  it  <Ioes  not  follow  that  the  jury  >ih.iilil 
be  instructed  to  this  effect.  It  is  sutHcient  if  the  jiirv  iire 
instructed  they  should  accpiit  if,  upon  the  whole  casi'.  they  have 
such  a  doubt.  When  such  an  instruction  is  given  it  covers  tin! 
whole  ground,  and  necessarily  iuchides  such  material  fact 
re(piired  to  convict,  and  sufKciently  directs  the  jury  that  eai'Ii 
material  fact  must  be  estaldished  beyoiul  a  reasoiialtle  tlouht: 
T/ie  State  v.  Fdter.  32  Iowa,  53;  The  State  v.  Ilaifdm,  45 
Iowa,  17.  If  we  understand  the  second  instruction,  the  jury  are 
told  that  it  is  sufficient  if  the  existence  of  preguaiu'y  has  been 
"fully  and  clearly  proven."  This  is  not  equivalent  to  saying  it 
must  be  established  beyond  a  reasonable  doubt.  A  clear,  well- 
defined,   and,  we  doubt   not,  intentional   distinction    is  drawn 


STATE  V.  STEWART, 


605 


flofoTiflant  is 
tlio  followinir 
bout  tlic  first 
iiiit.  Second. 
(i  to  said  Sur- 

itli  the  intent 
■II,  or  that  be 

intent  to  pro- 

l»y  (let'en<laiit 
t  the  tir.^t  (lay 
■eil'iiant. 
aNenationsaro 
oni|  aAenncur 
ioiiahU-  doubt. 

d<)ul>t.  of  tlift 
\\.      It  not  Ko 

and  naturally 

and  earetiilly 

las  been  intro- 

viewcd  iu  the 

the  same." 

I    ill   relarion 

Ite    the    criiMc 

it   at  llir  time 

I'itll    illtiiil    to 

re^'iiaiicy    w  :is 

ant    \\a>  ciiti- 

e  jury  >IimiiI(1 

the    jury   are 

ISC.  they  have 

it  covers  tlio 

material    tact 

nry  tiuit  eacii 

•nable  doubt: 

l!(ii/ih'n,  45 

.  the  jury  arc 

iticy  hiV8  heon 

t  to  saying'  it 

A  clear,  well- 

yn    is  drawn 


f. 

'V. 


it 


■!. 


U 


between  pregnancy  and  the  administration  of  the  drugs  or  use  of 
the  instrument.  It  must  be  presumed  the  jury  understood  the 
distinction  thus  drawn,  and  that  the  fact  of  pregnancy  was  only 
required  to  be  fully  and  clearly  proven,  while  the  use  of  the 
instrument  or  administration  of  drugs  must  be  established 
beyond  a  reasonable  doubt.  This,  we  think,  constitutes  error  to 
the  prejudice  of  the  defendant,  and  that  it  is  not  cured  by  the 
subsequent  remark  that  if  the  jury  "  are  satisfied,  beyond  a  rea- 
sonable doubt,  of  the  guilt  of  the  defendant,"  they  should  so 
find ;  for  the  jury  are  not  told  if  they  have  such  doubt  on  the 
whole  case  they  must  acquit.  Besides  this,  the  latter  part  of  the 
instruction  is  contradictory  to  that  portion  which  indicates  tlie 
degree  of  proof  required  to  establish  the  fact  of  pregnancy. 
But  we  ground  our  opinion  principally  upon  the  proposition 
that  the  instruction  draws  a  distinction  between  two  facts,  both 
of  which  should  be  established  beyond  a  reasonable  doubt,  before 
the  defendant  could  be  convicted. 

2.  The  definition  of  reasonable  doubt,  in  the  third  instruction, 
is  "such  as  arises  in  the  minds  of  the  whole  jury."  If  by  this  it 
was  meant  that  there  must  be  such  doul)t  before  there  could  be 
an  acquittal,  it  is  correct:  The  State  v.  Bodabach,  19  Iowa, 
154.  But  the  difficulty  is,  whether  the  jury  did  not  understand 
that  if  such  doubt  did  not  exist  there  should  be  a  conviction. 
If  tills  latter  view  is  the  correct  one,  then  the  instruction  is  erro- 
neous, beciause  it  amounts  to  a  direction  to  each  individual  juror 
to  yield  his  convictions,  unless  the  reasonable  doubt  entertained 
by  hiui  is  shared  by  his  fellows.  While  we  have  sonic  doubt  a.s 
to  the  proper  construction  of  the  instruction,  we,  on  the  whole, 
incline  to  think  it  was  prejudicial  to  the  defendant,  and  may  have 
produced  a  conviction,  when  one  or  more  of  the  jurors  may  have 
entertained  a  reasonable  doubt  of  his  guilt. 

3.  In  view  of  a  new  trial,  it  is  proper  to  say  that  none  of  the 
objections  to  the  evidence,  or  the  admission  thereof,  are  well 
taken.  The  objection  made  here  to  the  admission  of  the  evi- 
dence of  the  witness  Hull,  is  that  it  is  not  rebutting,  but  the 
objection  below  was  that  it  was  ineonipeteiit.  It  was  clearly 
competent  and   material,   but   it   may   not  have   been   strictly 


rebutting 


lievemed. 


606 


AMERICAN  CRIMINAL  REPORTa 


Bakek  v.  State. 


LH 


(Wisconsin.    Opinion  filed  Sept.  2,  1879.) 
Bastardy:    Seasonable  doubt  —  Sufficiency  of  evidence. 

In  a  bastardy  proceeding  tlie  paternity  of  the  cliild  must  be  established 
beyond  a  reason.ible  doubt. 

Where  it  appears,  from  the  testimoay  of  the  prosecutrix,  that  she  had  sexual 
intercourse  with  two  different  jjersons  so  nearly  the  date  of  conception 
that  either  of  them  might  be  the  father  of  the  child,  a  conviction  cannot 
be  had,  although  the  prosecutrix  swears  that  conception  resulted  from 
the  first  act.    It  is  impossible  that  she  should  know  this. 

Error  to  circuit  court,  Iowa  county. 
M.  M.  Strong,  for  plaintiff  in  error. 
Attorney- General,  for  defendant  in  error. 


Pi 


\    , 


r 

h        * 

t 


--U, 


IVl'; 


iii. 


.i*', 


Orton,  J.  The  judgment  in  this  case  must  be  reversed  on 
the  evidence. 

The  testimony  of  Ann  E.  Swagger,  the  prosecutrix,  is  positive 
that  her  last  menstruation  was  the  first  of  September ;  that  she 
had  se.xual  intercourse  with  the  defendant  about  two  weeks 
thereafter,  and  with  one  C.  Greenlast  about  two  weeks  after 
that;  tliat  her  child  was  born  the  25th  of  May,  and  that  the 
defendcant  is  its  father. 

In  such  cases  the  paternity  of  the  child  is  the  main  and  mate- 
rial fact  to  be  found  by  the  jury  {Speiger  v.  The  State,  32  Wis., 
400),  and  this  fact  the  jury  must  find  beyond  a  reasonable  doubt: 
Zweigle  v.  The  State,  27  Wis.,  396.  Whatever  the  j)robabilities 
m.ay  be,  from  this  evidence,  that  pregnancy  resulted  from  the 
first  act  of  sexual  intercourse,  which  was  with  the  defendant, 
because  of  its  being  nearest  the  termination  of  the  period  of 
menstruation,  and  of  the  longer  time  before  the  birth  of  tlie 
child,  yet  they  are  mere  probabilities,  and,  by  the  best  medical 
authorities,  very  questionable,  and  by  no  means  without  reason- 
able doubt:  2  Wharton  &  Stille,  sees.  43,  44,  45  and  46,  and 
cases  cited. 

The  prosecutrix  having  had  sexual  connection  with  two  per- 
Bons  within  so  short  a  time,  it  was  impossible  for  her  to  testify 
which  act  produced  pregnancy,  and  which  person  is  the  father  of 


«p 


BAKER  V.  STATE. 


607 


reversed  on 


the  child:    Commonwealth  v.  McCarti/,  2  Penn.  L.  Eep.,  135; 
4  Penn.  L.  Rep.,  Comm.onwealth  v.  Tritz,  43, 

In  view  of  these  undisputed  facts,  and  of  the  most  creditalile 
authorities,  tlie  jury  could  not  have  found  tlie  del'entlaiit  jruilty 
beyond  a  reasonable  doubt.  Physiological  speculations,  natural 
probabilities,  or  merely  probable  cause,  arc  quite  insiithcieiit, 
xipon  the  trial,  to  establish  the  fact  of  paternity  in  such  a  case. 
There  must  be,  from  the  very  nature  of  such  evidence,  great,  and 
certainly  very  reasonable,  doubt  as  to  tliis  main  fact.  It  is  urg(>d 
that  if  this  is  to  be  the  rule,  a  conviction  can  never  be  attained 
when  more  than  one  person  has  had  sexual  intercourse  with  tlie 
complainant  about  the  same  time.  This  consequence  of  the  rule 
is  far  less  important  and  serious  than  the  wrong  and  injustice  of 
a  conviction  upon  insufficient  evidence. 

In  such  a  case  the  qxiestion  is  not  whether  the  defendant  is 
guilty  of  having  had  illicit  intercourse  with  the  complainant,  but 
whether,  by  such  intercourse,  the  child  was  begotten,  and  this 
fact  must  be  found  beyond  a  reasonable  doubt.  This  being  the 
true  legal  rule,  the  consequence  of  its  strict  observance  by  courts 
and  juries  is  not  to  be  considered,  except  in  changing  or  abolish- 
ing the  rule  itself ;  but  while  the  rule  exists  the  consequences 
will  not  be  presumed  to  be  wrong  or  mischievous,  but  rather 
right  and  just. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  for  a  new  trial. 

Taylok,  J.,  dissents. 


"  '  II 


Note.  The  clear  weight  of  authority  is  that  bastardy  is  essentially  a  civil 
proceeding,  and  therefore  that  a  preponderance  of  evidence  is  sullicient  to 
establisli  the  paternity  of  the  child:  Mann  v.  People,  ;i5  111.,  407;  Allixoii  o. 
People,  15  111.,  ;J7;  Walker  v.  State,  6  Blackf.,  1;  Richardson  v.  Durleiijh,  3 
Allen,  471).  It  is  quite  prohiible  that  the  Supreme  Court  of  Wisconsin  will 
not  adhere  to  its  ruling  in  this  case. 

Since  it  was  decided  the  question  arose  again  but  was  not  decided,  the 
opinion  stating  that  the  menil)ers  of  the  court  were  not  agreed  upon  this 
point:    Ding  man  v.  State,  Wisconsin,  opinion  filed  Feb.  24,  1880. 


v<y 


:.-!! 


i 


f 

I?! 

a'' I 
I 


«,V 


B^' 


fen? 


I  ' 


h  ' 


'I'l 


CM 

1    :: 

^ 

■|--.^,;,i;    :.-,f 


608  AHSRICAN  CRIMINAL  REPOBTa 


Beqina  y.  Moore. 

(13  Cox  Cr.,  544.) 

BiOAUT :    Bona  ftd«  belief  of  death  of  flnt  huiband. 

To  an  indictment  for  bigamy  it  is  a  good  defense  that,  at  the  time  of  the 
bigamous  marriage,  the  prisoner  hud  a  reusonublc  and  bona  fide  belief  that 
her  husband  Wiis  dead,  although  seven  years  had  not  elapsed  since  she 
last  heard  of  him. 

Emma  Louisa  Attersall  Moore  was  indicted  for  that  she,  on 
the  14th  day  of  December,  1875,  at  Thrussington,  in  the  county 
of  Leicester,  feloniously  did  marry  one  Morris  Tonge,  her  for- 
mer husl>and,  Robert  Moore,  then  being  alive. 

Brogden,  prosecuted. 

Horace  Smith,  appeared  foi-  the  prisoner. 

It  was  proved  that  the  prisoner,  whose  maiden  name  was 
Emma  Louisa  Attersall  Thorold,  was  married  under  that  name 
to  Robert  Moore,  at  St.  Pancras  church,  on  May  11th,  1857,  and 
that  on  the  14th  December,  1875,  she  went  through  the  cere- 
mony of  marriage  at  Thrussington,  in  Leicestershire,  with  Mor- 
ris Tonge.  The  prisoner  had,  for  nine  months  previously,  been 
living  in  Thrussington,  as  housekeeper  to  the  said  Morris  Tonge. 
The  bans  had  been  tluly  published  in  the  names  given  in  the 
certificate,  in  which  the  prisoner  was  described  as  Eininu  Louisa 
Moore,  widow,  and  the  ceremony  was  performed  in  the  parish  at 
Thrussington. 

When  before  the  committing  magistrate  the  prisoner  said: 
'*  I  believed  my  first  husband  was  dead."  At  the  close  of  the 
case  Mr.  Horace  Smith  proposed  to  call  evidence  to  show  that 
the  prisoner  bona  fide  and  reasonably  believed  that  her  first  hus- 
band was  dead,  citing  R.  v.  Turner  (9  Cox  C.  C,  145),  and  /?. 
V.  Ilm'ton  (11  Cox  C.  C,  670),  and  pointing  out  that  a  decision 
of  Sir  Baliol  lirett,  in  li.  v.  Gibhonn,  ti>  the  contrary,  is  said,  in 
a  note  to  the  last  edition  of  Russell  on  Crimes  (5th  ed.,  vol.  3,  p. 
205),  to  be  inconsistent  witli  the  view  taken  by  the  same  learned 
judge  in  his  judgment  in  R.  v.  Prince,     (a) 

The  learned  (counsel  liaviiig  addressed  the  jury  in  this  sense, 
called  witnesses  who  stated  that  Rol)ert  Moore  had  deserted  his 
wife  about  fotir  or  five  years  ago,  and  that  since  the  desertion  a 
sister  of  the  first  husband  had  written  to  say  he  was  dead,  and 


mmm 


REGINA  «,  MOORE. 


GUI) 


that  a  general  belief  of  his  death  existed,  which  belief  was  shared 
by  Morris  Toiige  and  all  who  were  connected  with  the  parties  in 
the  neighborhood.  No  inquiry  was  made  by  the  prisoner  as  to 
the  truth  of  the  statement  said  to  have  been  made  in  the  letter, 
and  the  letter  was  not  produced. 

Denman,  J.,  in  summing  up  the  case  to  the  jury,  said  :  Tlie 
section  of  the  act  of  parliament  (21  and  25  Vict.,  c.  57),  is  per- 
fectly simple  until  you  come  to  the  exception,  "provided  that 
nothing  in  this  section  contained  shall  extend  to  any  person  mar- 
rying a  second  time  whose  husband  or  wife  shall  have  been  con- 
tinually absent  from  such  person  for  the  space  of  seven  yeais 
then  last  past,  and  shall  not  have  been  known  by  such  person  to 
be  living  within  that  time."  Now,  this  case  is  not  within  the 
exception ;  but  does  this  general  pi-inciple  apply,  that  if  at  the 
time  of  contracting  a  second  marriage  the  prisoner  has  a  botia 
ji.de  ami  reasonable  belief  that  the  first  husband  or  wife,  as  the 
case  may  be,  is  dead,  in  such  case  is  the  prisoner  entitled  to  an 
acquittal '(  Two  judges  have  separately  decided  that  such  belief 
is  a  good  defense  (Martin,  B.,  in  A',  v.  Turner,  9  Cox  C.  C,  14r», 
and  Cleasby,  J3.,  in  R.  v.  IJorton,  11  Cox  C.  C,  67<>i,  and  two 
judges,  after  solemnly  consulting  together,  have  decided  that  it 
is  no  defense.  (Brett,  J.,  and  Willes,  J.,  in  A',  v.  (>lfjf><t)i.s,  12  Cox 
(J.  C,  2:57.)  If  you  think  that  the  prisoner,  having  a  bad  hus- 
band, witliont  any  real  belief  of  his  death,  took  the  risk  of  mar- 
rying again,  acting  upon  what  she  thought  she  might  appeal  to 
as  a  defense  hereafter,  then  you  should  find  against  her.  But  if 
you  think  she  believed,  and  reasonably  believed,  her  first  husband 
to  he  dciid  before  she  married  again,  then  you  should  say  so,  and 
I  would  consider  whether  I  would  reserve  a  case  for  the  court  of 
crown  cases  reserved. 

The  jury  found  that  the  prisoner  married  under  a  botia  fide 
and  reasonable  belief  that  her  husband,  Robert  Moore,  was  dead. 

Dknman,  J.     I  will  consider  whether  a  point  be  reserved. 

Friday,  March  9.  Dknman,  J.  I  adjourned  this  case  yester- 
day, in  order  that  I  might  consult  my  hrother  judge  (Lord  Jus- 
tice Amphlett),  as  to  the  effect  of  the  tiiiding  of  the  jury  on  the 
question  left  to  them.  The  question  iijx.n  which  they  gave  their 
opinion  was  this:  They  found  that  the  prisoner,  at  the  time 
wiien  she  went  through  the  ceremony  of  marriage  with  Morris 
Tonge,  honafide  and  reasonably  l)elieved  that  her  husband  was 
"  Vol.  II.— a9 


610 


AMERICAN  CRIMINAL  REPORTS. 


i-  ^-; 

-■j. .  ^ 

if::-. 


■-.Ul 


mA, 


I 


dead.  Owing  to  the  great  conflict  of  decisions  of  different 
judges  as  to  whether  that  finding  constitutes  a  defense  in  law  or 
not,  I  thought  I  ought  to  take  time  before  stating  what  course 
ought  to  be  taken,  and  to  consult  my  brother  judge  as  to  what  he 
thought  was  right  to  do.  Two  very  learned  juilges — one  the  late 
Baron,  now  Sir  Samuel,  Martin,  a  judge  of  long  experience,  wlio 
some  time  since  retired  from  the  bench,  and  the  other,  Baron 
Cleasby — held  in  two  different  cases  (/?.  v.  Turner,  9  Cox  C.  C, 
145;  /?.  V.  IJorton,  11  Cox  C.  C,  070),  that  such  a  litiding  as 
this  constituted  a  defense.  Two  other  learned  jiulges — 8ir 
Baliol  Brett  and  the  late  Mr.  Justice  Willes — consideretl  unotlier 
case  (7?.  v.  Gibbons,  12  Cox  C.  C,  237),  sul)se(|uently  to  the  two 
I  have  mentioned,  and  held  that  when  such  facts  were  found  by 
a  jury  they  did  not  constitute  a  defense. 

Under  almost  any  circumstances,  where  there  was  such  a  con- 
flict of  decisions,  a  judge  would,  I  think,  be  reluctant  to  take 
upon  himself  to  decide  the  point,  and  what  he  would  do  in  the 
interests  of  justice,  in  order  that  the  law  niiglit  be  liiially  settled, 
would  be  to  reserve  the  case  for  the  court  of  criminal  appeal  to 
say  whether  the  tinding  of  the  jury  did  or  did  not,  in  the  opinion 
of  the  court,  constitute  a  defense.     If  this  had  been  a  case  in 
whicli,  supposing  the  court  of  criminal  appeal  had  tlioutrht  tlie 
finding  of  the  jury  did  not  constitute  a  defense,  I  should  luive 
felt  it   my  duty  to  have   passed   a   substantial    punishment — I 
should  have  felt  bound  to  adopt  that  course ;  but,  havitig  con- 
sulted my  brother  judge,  and  finding  that  he  had  on  a  fornKiP 
occasion  very  carefully  considered  this  very  (piestion,  and,  so  far 
as  his  opinion  was  concerned,  it  was  in  favor  of  this  being  a  valid 
defense,  I  must  say  that,  subject  to  all  the  ditKdenee  and  doul)t 
caused  by  the  strong  opinion  formed  by  Sir  Baliol  Brett  and  tlie 
late  Mr.  Justice  Willes— who  did  not  reserve  the  point  because 
they  felt  so  strongly  that  it  was  no  defense — my  own  opinion 
goes  with  my  colleague  at  these  assizes,  and   I  think  I  slioulJ 
hold,  after  full  argument,  that  the  Hnding  of  the  jury  did  con-ti- 
tute  a  defense.     I  bear  in  mind  the  case  of   /i.   v.    Prince  i  L 
Kep.,  2  C.  C.  R,  ir,4 ;  44  L.  J.,  M.  C,  122 ;  S.  C,  I  Am.  Cr..  I), 
but  in  this  ease  the  thing  done  was  not  unlawful,  and,  therefore, 
its  legality  or  illegality  entirely  depended  on  the  question,  whetlier 
the  prisoner  knew  she  contracted  the  second  marriiige  during  the 
lifetime  of  her  former  husi)and,  and  on  the  principle  of  common 
law,  that  no  person  should  be  deemed  guilty  of  an  offense  unless  he 


B' 


BEOINA  «.  MOORE. 


611 


E  different 
3  in  law  or 
irliat  course 
to  what  he 
itie  the  late 
rioiK-e,  who 
;her,  Baron 
Cox  C.  C, 
i  tinditig  as 
juilgos — Sir 
M'cid  another 
y  to  tlie  two 
re  found  by 

such  a  con- 
tant  to  take 
Id  do  in  tlie 
iially  settkHl, 
lal  appi'al  to 
1  the  opinion 
en  a  case  in 
tlioiiirht  the 
slioiild  luive 
iiit-hniciit— I 
,  liavitiii;  con- 
on  a  former 
n,  and,  so  far 
)eini,'  a  valid 
CO  and  douht 
Urctt  and  tlie 
loint  hecaurie 
own  opinion 
ink  I  pliould 
i-y  did  coii^ti- 
I).    I*i'iit('i'  '  I-- 
Am.  Cr..  1), 
nd,  therdnfe, 
stion,  wliether 
<rc  durinn  the 
lie  of  coniuiou 
tense  unless  he 


or  she  knew  that  it  was  willfully  committed,  a  ^reat  deal  mij^ht  be 
said  in  favor  of  tlie  view,  that  with  such  a  tindiiij^  of  the  jury  the 
prisoner  ought  not  to  be  deemed  guilty.  1  do  not  wiisli  to  give 
a  final  judgment,  and  if  the  case  had  been  one  wliicli  uicritifd  a 
severe  punishment,  I  shcKiid  iiave  reserved  it  for  the  (h-cisioii  of 
the  court  of  criminal  appeal.  The  case,  liowevcjr,  is  one  which, 
under  any  circumstances,  after  such  a  liiuiing  of  the  jury,  in 
which  I  see  no  reason  to  disagree,  I  shouhl  only  liave  passiul  a 
nominal  sentence;  and,  therefore,  as  I  do  not  tiiink  it  i'air  t(»  the 
prisoner,  in  order  that  a  point  of  law  may  be  s(!ttied  for  the 
benefit  of  the  country,  to  put  lier  to  the  expense!  of  arguing  tiie 
case  before  tlio  full  court,  my  own  and  my  colh-agiie's  judgment 
being  In  favor  of  the  finding  of  the  jury  constituting  a  defense, 
I  shall  hold  that  tlie  finding  amounts  to  a  verdict  of  not  guilty, 
and  order  tlie  ))risoner  to  be  discharged. 

Solicitors  for  the  prosecution,  Tweed  and  Stephens  of  Lincoln. 

Solicitor  for  the  defense,  Page  of  Lincoln. 

Note.  Of  the  justice  of  the  rule  laid  down  in  this  cnso  thrrf  ran  be  no 
question.  It  is  ii  iioiicnil  rule  of  tlie  criminiil  law,  that  wlicrc  oni'  acts  upon 
aboiKi  fide  and  reasonable  belief  of  a  fa(tl,  the  question  of  tlic  ciiminality  of 
his  act  is  to  be  juilj,'cd  as  tliouiih  the  hiv\  existed,  hi  dun.  v,  Munh,  7  Mete. 
(jMass.).  \1i,  the  cuurl.  lieUl  tliat  a  bond  Jidf  belief  of  llii'  ilcalli  of  tlie  tliHt 
husiiaiid  was  no  delunse,  and  u  coiivielion  was  liad.  Hut  in  that  case  llio 
barshni'ss  of  tlie  rule  adopted  was  so  aiiparciil  thai  the  di'lViidnnl  wa^  par- 
doned before  any  jiidjiinent  was  pronouneed,  the  court  aecepliiifr  a  recoirnl- 
zance  for  her  ajiiiearance  after  the  decision,  in  oriler  to  alToi'd  opportunity  to 
obtain  and  plead  the  pardon  in  bar  of  sentence. 

The  case,  however,  of  a  bona  fide  and  reasonable  belief  of  a  fa<'t  is  not  to  b« 
confounded  with  a  bona  fide  nii.stake  as  to  tin;  law.  If  a  person  marries  a 
Bccond  lime,  supposinjj:  that  he  haa  a  legal  riu'lit  to,  but  knowing'  idl  the  fnclt 
on  whidi  tlie  leu'aiity  of  the  marriau:e  deiieuds,  hit)  good  falili  will  not  avail 
him:  Stute  v.  Goodenow,  05  ile.,  m  (S.  C,  1  Am.  Cr.,  '12);  LI.  H.  v.  L'n/iioUU, 
1  Utah  T.,  220  (S.  C,  8  Otto.  145);  Dam  v.  Com.,  \ii  IJush.,  !tlH  (S.  U.,  ante, 

p.  loa). 

It  is  said  that  the  state  must  prove,  beyond  a  reasonable  doubt,  that  the  first 
wife  was  living  at  the  time  of  the  second  marriage.  VVlufre  llierc  is  no  dinct 
evidence  on  this  point,  and  the  only  evidence  is  (hat  the  (Irsi  wife  was  alivo 
two  years  previous  to  the  second  marriage,  the  i)resumpli()ii  of  the  (onlinu- 
ance  of  her  life  is  neutralized  by  the  presumption  of  the  defendant's  inno- 
cence, and  in  such  a  case  there  can  be  no  conviction:  Bquire  v.  StaU,  46 
Ind.,  450. 


,1 '  i ' 


Ut 


if 


L 


is 


Pi'^i 


t  '. 


k   'i   5 


612  AMERICAN  CRIMINAL  R£PORT& 


CoMMONWRAI/l'H    V.    KlCnARDBOK. 

(12GMH88.,  34.) 

Bioakt:    Marriage  of  a  man  wluiw  uiife  had  obtained  a  divorce  for  his  tniiam- 

(I  art  —  Variiinre. 

Under  a  statute  which  provides  that  a  divorced  person,  "who  is  tlie  puilty 
cause  of  sucli  divorce,"  shall  be  d(!ein(Hl  iniilty  of  bigamy  if  he  marries 
again  during  the  liretinieof  his  divorced  wife,  such  an  one  cannot  be 
convicted  of  bigamy  under  an  itidi<;tnient  which  merely  charges  bigamy 
in  the  ordinary  manner.  In  such  a  case  the  indictment  must  allege  the 
divorce,  and  that  the  defendant  was  the  guilty  cause  thereof,  and  all  the 
other  fuels  necessary  to  bring  the  case  within  the  terms  of  the  statute. 

It  is  a  general  rule  in  criminal  plcatiing,  that  if  an  offense  may  be  cominitteil 
in  either  of  various  modes,  the  party  charired  is  entitled  to  have  that 
mod(!  stated  in  the  indictment  which  is  proved  at  the  trial;  am!  when  one 
mode  is  sinfed,  and  proof  of  the  commission  of  the  offense  by  a  different 
mode  is  offered,  such  evidence  is  incompetent  by  reason  of  variance 

Lord,  J.  The  status  of  a  party,  whose  contract  oi'  iiiaiTin«:(' 
has  been  jucHcially  dissolved  for  his  fault,  has  not,  in  thi.s  com- 
raon wealth,  been  precisely  defined.  In  Coininoniviiilth  r.  P>it- 
nain.  1  Pick.,  i;^<>,  Mr.  Justice  Wilde  says:  "  P>y  the  (iivoive 
the  first  tnarria<j:e  was  di.ssolved,  and.  but  for  the  second  .section 
of  the  act  of  1784  (c.  40),  the  second  niarriaife  WdiiM  Imvc  lucii 
lawful  by  our  laws,"  and  adds :  "Not\vitli-raii<'  an  th.  tfairt 
imposed  on  the  husband,  he  beini;  the^'"  '  ut'  tiic  divonc, 

the  dissolution  of  the  inarriaju;e  contrai  total,  iiiid  v      |>;ir- 

tial."  In  West  Oimhrifhje  v.  Leaimji  1  Pi<'l<.,  50t;.  C'iiief 
Justice  Furker,  in  giving  the  opinion  of  tlie  com  ,  speaks  ot"  such 
party  as  "not  being,  in  a  legal  sense,  a  inarricu  man,  and,  pei- 
iuips,  not  to  be  considered  as  having  a  former  wife  living,  tlie 
decree  of  divorce  having  terminated  the  relation  of  husband  and 
wife."  We  do  not  deem  it  necessary  in  this  case  to  deterinitie 
whether  tmy  or  what  marital  duties  or  obligations  remain  upon 
such  |)crs(m. 

By  the  General  Statutes  (c.  165,  sec.  4),  it  is  enacted  tliat 
"whoever,  having  a  former  husband  or  wife  living,  marries 
another  person,  or  continues  to  c<»liabit  witli  such  second  lius- 
band  or  wife  in  this  state,  shall  (except  in  the  cases  mciitioiiod 
in  the  following  section)  be  deemed  guilty  of  polygamy." 

The  following  Bection  is  in  these  words:    "The  provision  of 


COMMONWEALTH  e.  mCHARDSON, 


$18 


for  hia  miscon- 


the  precedinp;  section  slinll  not  extend  to  any  pt'i-j^on  wliose  hus- 
banil  or  wife  Iiiis  heen  eontiiuially  renijiininsf  beyond  sea,  or  has 
voliiiiturily  witlidniwn  from  the  other,  and  remain  absent  for  the 
hpace  of  seven  years  tof^cther.  the  party  marrying  again,  not 
knowing  the  other  to  be  h'ving  witliin  that  time,  nor  to  any  per- 
son legally  divorced  from  the  bonds  of  matrimony,  and  not  the 
guilty  cause  of  snch  divorce." 

This  statute  is  substantially  the  same  as  the  statute  of  1784  (c. 
40),  and  from  that  time,  and  for  a  period  long  before,  to  the  pres- 
ent, lias  l)oen  in  substance  the  law  of  the  provin(-e  and  the  com- 
monwealth. 

The  same  provisions  were  incorporated  into  the  Revised  Stat- 
utes, chapter  130. 

In  Comvionwealth  v.  Ihttriaui,  uhi  siipra.  the  guilty  party  in 
the  divorce  suit  married  again  in  another  state,  and  was  indicted 
for  the  crime  of  adultery  in  this  state.  In  Commonwealth  v. 
Hunt,  4  Gush.,  49,  the  guilty  party  married  again,  also  in 
another  state,  and  the  indictment  charged  her  with  lewd  and 
lascivious  cohabitation  in  this  state,  with  the  party  to  whom  she 
claimed  to  be  married.  In  eacli  of  these  cases  the  court  held 
that  the  offense  charged  was  not  the  offense  committed. 

In  the  former  case  the  jury  found  a  special  verdict  establish- 
ing the  facts  of  the  former  marriage,  the  divorce  foi-  the  defend- 
ant's adultery,  his  second  marriage  in  Connecticut,  and  his  cohabi- 
tation in  this  state. 

Lincoln,  in  behalf  of  the  defendant,  in  argument,  is  reported 
as  saying  :  "Johnson  defines  adultery  'the  act  of  violating  the 
bed  of  a  married  person.'  The  defendant  has  not  done  this. 
lie  has  not  violated  any  plighted  faith  to  his  former  wife." 
'•  The  indictment  might  as  well  have  been  for  polygamy  as  for 
adultery;"  "though  in  truth  he  could  not  be  indicated  for  either, 
unless  he  were  a  married  man  at  the  time  of  the  second  mar- 
riage." In  declaring  the  result  at  whicli  the  court  arrived,  Mr. 
Justice  Wilde  utters  the  dictum  :  "The  defendant  should  have 
been  indicted  on  the  second  section  of  the  act  referred  to."  which 
is  substantially  the  same  as  the  General  Statutes  (c.  164,  sees. 
4,  5). 

Although  a  dictum  by  that  magistrate  is  always  entitled  tq 
most  respectful  consideration,  it  is  not  to  lie  n-garded  as  the  judg- 
ment of  the  court.  The  dictum  is.  howi'ver.  <)ualiticd  by  the 
statement,  "The  second  marriage,  with  all  the  otlicr  tacts  coiisti- 


'     '.  I?  ',1 


m) 


Mr 

m 

Ml 

■  >  ' 


if.-. 


b 

h 


'.^    ' 


614 


AMERICAN  CRIMINAL  REPORT8. 


tntinw  tlie  crime  of  polyf>;jiiny,  slioukl  have  been  set  forth  in  tlie 
indic'.tincnt.  so  that  defendant  niiylit  have  been  prepared  to 
answer  and  defend  himself,  showinj^  tliat  that  learned  judue 
deemed  it  necessary  tliat  the  divorce  and  the  siibseqnent  niar- 
riaue  of  tlie  ijiiilty  party  should  be  alleged  in  the  indictnient :  1 
Pick.,  139.  In  the  latter  case,  Mr.  Justice  Dewey  speaks  more 
cautiously,  and  says  :  "If  the  facts  in  this  case  aflforded  ji;roun(l 
for  any  indictment  under  the  Revised  Statutes,  chapter  130,  it 
would  be  more  properly  an  indictment  upon  the  second  section, 
for  unlawfully  cohabiting  within  the  state,  with  Davis,  as  hus- 
l»a!»d  and  wife,  the  defendant  having  a  former  husband  living, 
and  not  coming  within  the  exception  of  the  third  section,  as  a 
])crson  'not  the  guilty  cause  of  the  divorce,'"  decisively  inti- 
iiiatiiig  that,  if  the  indictment  could  be  maintained  under  that 
statute,  it  must  aver  the  facts  which  bring  the  party  within  its 
terms  :     4  Cush..  50. 

In  Coiiiiiumirt'idth  v.  Lanc^  113  Mass.,  458,  the  question  pre- 
sented in  tin's  case  did  not  firise,  and  was  not  considei'cd  by  the 
court;  for,  although  the  defendant  was  charged  with  })olyganiy, 
under  the  same  statute,  for  marrying  a  second  time  during  the 
life  of  the  former  wife,  the  defense  was  that  his  marriage  was  a 
legal  marriage  under  the  law  of  the  state  of  New  llumj)sliire, 
where  it  was  consummated,  and  the  court  so  held. 

These  three  cases,  it  is  believed,  are  the  only  ones  which  have 
been  decided  in  this  commonwealth,  in  which  the  sul)se(pieiit 
marriage  of  the  guilty  divorced  party  has  been  before  the  court 
upon  an  indi(^tment. 

It  is  certain  that  it  has  never  been  decided  by  this  court,  that 
Buch  party  can  be  convicted  of  polygamy  under  the  provisinns  of 
the  General  Statutes,  chapter  105,  section  four,  or  the  previous 
statutes  of  the  same  character. 

Nor  do  we  deem  it  neccpsary,  for  reasons  hereafter  to  be 
stated,  now  to  decide  that  question. 

If  that  question  could  be  presented  nakedly,  it  would  be  a 
matter  deserving  (tf  grave  consideration,  whether  the  party 
charged  could  be  said,  in  criminal  pleading,  to  Ik*  one  haviiii;  a 
husband  (»r  wife  living,  or  as  bi'ing  a  lawful  husband  or  wife,  luit 
we  are  quite  certain  that  the  facts  should  be  stated  wliicli  hriiii^ 
the  party  within  the  provisions  of  the  statute.  It  is  to  ho 
noticed  that  the  exceptions  in  the  statiiti;  are  not  such  as  are 
ordinarily  introduced  in  legislation  atl'ecting  tlie  act  done,  but 


1 


•euftci"  to  be 


COMMONWEALTH  v.  RICHARDSON. 


relate  entirely  to  the  person,  and,  without  these  exceptions,  the 
law  would  perhaps  be  construed  the  same  as  with  them.  See 
Commonwealth  v.  Jennings,  121  Mass.,  47.  But  two  classes  of 
persons  are  refei'rod  in  to  the  proviso. 

The  first  class  includes  "  any  person  whose  husband  or  wife 
has  been  continually  remaining  beyond  sea,  or  has  voluntarily 
M  ithdrawn  from  the  other,  and  remained  absent  for  the  space  of 
seven  years  together,  the  party  marrying  not  knowing  the  other 
to  be  living."  In  such  case  the  party  is  presumed  to  be  dead; 
and,  although,  if  he  or  she  should  return,  the  marriage  might  be 
void,  it  certainly  would  be  straining  the  law  to  hold  such  one 
criminally  guilty  in  doing  an  act  which  he  or  she,  by  law,  might 
proi)orly  j)rcsume  to  be  a  lawful  act:  Commonwealth  v.  Thomp- 
aof),  6  Allen,  5!)1,  and  11  Allen,  23.  The  other  class  includes 
su<'h  as  are  unlawfully  divorced,  being  innocent.  Under  the  law 
he  or  she  is  entitled  to  have  the  marriage  contract  dissolved, 
rcrtuinly,  without  any  proviso  or  exception,  no  such  iierson,  on 
marrying  again,  could  be  deemed  to  be  guilty  of  polygamy;  and 
it  is  not  imi)robal)le  that  the  exception  was  instated  out  of 
extreme  caution,  and  possibly  because  the  act  of  17^4-  had  an 
exception  of  a  similar  character.  It  was  this:  " Provided  also. 
that  this  act,  or  anything  therein  contained,  shall  not  extend  to 
the  wife  of  any  married  man  who  shall  willingly  absent  himself 
from  his  said  wife,  by  the  space  of  seven  years  together,  without 
making  suitable  provision  for  her  support  and  maintenance  in 
the  meantime,  if  it  shall  be  in  his  power  so  to  do." 

The  statute  of  1781-  was  but  a  re-enactment,  with,  of  course,  a 
diiTerent  penalty,  of  the  Province  Law  of  6  Wm.  and  M.  (1604-5), 
chapter  5,  against  polygamy,  with  a  proviso  in  relation  to  continu- 
ous absence,  in  almost  the  identical  language  of  the  General  Stat- 
utes, chapter  1 0.5, 1  Province  Laws  (state  ed.),  171.  The  Statute  of 
6  Wm.  and  M.,  chapter  5,  contains  also  a  proviso  excepting  from  its 
operation  divorced  parties,  but  does  not  distinguish  between  the 
guilty  and  innocent  party,  its  language  being,  "shall  not  extend 
to  any  i)erson  or  persojis  that  arc,  or  shall  be  at  the  time  of  such 
marriage,  divorced  by  any  sentence  had,  or  hereafter  to  be  had. 
as  the  law  of  the  iimvince  in  that  case  has  provided." 

Whethei-  the  gniUy  party  would  at  that  time  have  been  deemed 
a  divorceil  pai'tv,  it  is  not  necessary  to  uu\u'm'.  Four  years  later. 
by  statute  10,  William  HI.  (IdOS),  chapter  lit,  the  pn.viso  in  rela- 
tion to  time  of  absence  was  moditie<l,  and  it  was  enacted,  "  that  if 


616 


AMERICAN  CRIMINAL  REPORTS. 


1*1 


^If 


i\  i '  • 


any  married  person,  man  or  woman,  has  lately  or  shall  hereafter 
fro  to  sea  in  any  ship  or  other  vessel,  bound  from  one  port  to 
another,  where  the  passage  is  nsually  made  in  three  months' 
time,  and  such  ship  or  other  vessel  has  not  been,  or  shall  not  be 
lieard  of  within  the  space  of  three  full  years  next  after  their  put- 
ting to  sea  from  such  port,  or  shall  only  be  heard  of  under  such 
circumstajices  as  may  rather  confirm  the  opinion,  commonly 
received,  of  the  whole  company  being  utterly  lost,  in  every  such 
case,  the  matter  being  laid  before  the  governor  and  council,  and 
made  to  appear,  the  man  or  woman,  whose  relation  is  in  this 
manner  parted  from  him  or  her,  may  be  esteemed  single  and 
unmarried,  and  upon  such  declaration  thereof,  and  license 
obtained  from  that  board,  may  lawfully  marry  again,  any  law, 
usage  or  custom  to  the  contrary  notwithstanding:"  1  Prov. 
Laws,  353. 

Such  being  the  history  of  the  law  and  its  condition  till  1841, 
we  feel  warranted  in  inferring  that,  at  that  time,  the  legislature 
did  not  deem  the  marriage  of  the  guilty  party  who  had  been 
divorced  to  be  polygamy,  for  in  that  year  was  enacted  the  fol- 
lowing statute : 

"  Whenever  a  divorce  from  the  bond  of  matrimony  shall  be 
decreed  for  any  cause  allowed  by  law,  the  guilty  jiarty  sliall  be 
debarred  from  contracting  marriage  during  the  lifetime  of  the 
innocent  party ;  and  if  the  guilty  party  shall  contract  sticli  mar- 
riage the  same  shall  be  void,  and  such  party  shall  be  adjudged 
guilty  of  polygamy :  "  Stat.  1841,  c.  83.  This  is  substantially 
re-enacted  in  the  General  Statutes,  chaj)ter  107,  sec.  25. 

This  kind  of  legislation  has  many  precedents.  Any  pcrsHii 
who  embezzles  property  is  deemed  by  the  statute  to  have  com- 
mitted the  crime  of  larceny;  it  is  not  sutHcicnt.  however,  in  an 
indictmejit  for  such  offense,  simply  to  charge  stealing  in  tlie 
usual  manner,  but  the  facts  which  constitute  the  embezzleiiHuir 
must  be  sot  out,  with  the  averment  of  the  legal  C(>nclu«i(»Ti  tli;it 
thereby  and  by  force  of  the  statute  the  jiarty  charged  has  com- 
mitted the  crime  of  larceny. 

If,  however,  we  assume  that,  prior  to  the  statute  of  1841,  a 
divorced  party,  being  the  guilty  cause  of  the  divorce,  tin'glit  be 
guilty  of  pnlygamy  by  marrying  again  during  the  life  of  liis  for- 
mer wife,  still  the  result  must  be  the  same,  in  this  case,  as  if  no 
such  offense  could,  prior  to  that  statute,  be  committed,  for  it  is 
quite  clear  that,  under  the  existing  statutes,  the  crime  of  i>oly- 


COMMON\VEAT>TIT  v.  RTCTTARDSON. 


617 


gniny  may  be  coinniitted  by  persons  under  entirely  diverse  eir- 
cnmstancep,  and,  by  the  familiar  rules  of  pleading,  a  party 
charged  with  an  offense  is  entitled  to  a  statement  in  the  indict- 
ment of  the  faets  which  constitute  the  offense;  and  if  an  offense 
may  be  committed  in  either  of  various  modes,  the  party  charged 
is  entitled  to  have  that  mode  stated  in  the  indictment  which  is 
])roved  at  the  trial ;  and  when  one  mode  is  stated  and  proof  of 
the  commission  of  the  offense  by  a  different  mode  is  offered,  such 
evidence  is  incompetent  by  reason  of  variance.  It  is  clear,  there- 
fore, that  whether  we  decide  that  the  offense  of  polygamy  might 
have  been  committed  by  the  guilty  divorced  party  or  not,  the 
result  must  be  the  same,  for  the  facts  proved  would  show  either 
that  no  crime  was  committed,  or,  if  committed,  there  was  a  vari- 
ance between  the  allegate  and  the  probata. 

JVew  trial  ordered. 


Note. — In  State  v.  Weatherby,  43  Me.,  258,  the  Supreme  Court  of  Maine  was 
(•ailed  upon  to  consider  the  effect  of  a  statute  similar  in  its  terms  to  that  on 
wjiich  the  indictment  in  (hmmouwealth  v.  liirJidnhon  h  fnim<.'d.  They  jioint 
out  that  it  is  only  by  inference,  if  at  till,  that  the  suilty  cause  of  a  divorce 
incurs  the  penalties  of  bigamy  by  marrying  airain,  and  express  (loul)t  whether 
or  not  it  would  have  that  ellect.  But  they  decide  clearly  that  whether  or  not, 
under  such  a  statute,  the  accused  person  is  gtiilty  of  any  olleuse,  he  certainly 
cannot  b(f  guilty  of  bigamy,  because  tlu^  tirst  marriage  tic  cannot  be  dissolved 
as  to  one  without  being  dissolved  as  to  the  other.  On  this  ground  they  held 
the  defendant,  who  was  the  guilty  cause  of  a  divorce  in  Maine,  and  who  had 
married  a  seciomi  time  in  New  Hampshire,  and  brought  his  second  wife  to 
-Maine,  and  coliabitcd  with  her  there,  not  guilty  of  adultery.  And  in  Peojjle 
r.  Iloiry,  r»  Barb.,  117,  it  was  hi  Id,  under  a  somewhat  similar  statute,  that  a 
I»er.son  divorced  for  his  own  adultery  was  not  guilty  of  bigamy  in  marrying 
again  within  the  state. 

It  is  a  general  rule,  that  a  statute  restraining  the  guilty  parly  agniiist  whom 
a  divorce  lias  been  granted  from  marrying  again,  has  no  I'orcc  out  of  the  stale 
in  which  the  divorce  wius  granted,  and  it  is  also  true  that  the  provisions  nf 
such  a  statute  do  not  alTect  the  marriage,  williin  the  sfiile,  of  a  party  against 
whom  adivorce  has  been  granted  by  the  tribunals  of  another  slate.  The  pro- 
hibition ilocs  not,  on  the  one  hand,  take  away  the  right  of  the  jiarty  to  marry 
out  of  the  jurisdic'liou  which  imposes  it;  neither,  on  tlie  other  hand,  docs  it 
apply  to  foreign  divorces;  1  Hish.  Mar.  and  Div.,  sec.  ;!()(1;  and  .see  'i  Id., 
sen.  701,  el  xrq.,  and  cases  there  cited;  Ikrd  i\  Wniivin,  V.\  Ala.,  •'iTO;  Vmi 
,Slnn'kv.  On  lit  II.  71  Pa.  St.,  240;  Com.  v.  Lane,  lUi  Mass..  458;  Ihrkxoi,  r. 
Dii'kmn,  1  Yerg.  (Tenn.),  110. 

.\n.l  in  Piilnam  v.  I'uliiam,  8  Tic'lt.,  4;!;i,  it  was  Iifhl,  that  where  the  guilty 
divorced  person  left  the  state  and  was  married  in  another  state  tor  the  very 
purpose  of  evading  the  statutory  proiiibillon,  and  returned  to  Massachusetts 
to  reside  immedialely  after  the  second  inarria,u;e,  that  the  second  marriage 


¥  '  y 


618 


AMERICAN  CRIMINAL  REPORTS. 


'ft ' 

k  i 


I  i.< 


( 

-■  +• 


Is  t       I 


fii'l ' 


Jr 


must  be  regarded  as  valid  in  Massacliusettfi.  In  North  Carolina,  on  the  other 
hand,  it  was  field,  that  if  the  guilty  person  went  into  another  state  to  be  mar- 
ried a  second  time,  simply  to  avoid  and  evade  the  provisions  of  the  North 
Carolina  statute,  his  second  marriage  would  be  held  void  in  North  Carolina. 


Ex  Pakte  Gakst. 


(Nebraska.     Opinion  Filed  February  13,  1880.) 
FoRMBT?,  Jeofaudy:    rreliminary  examination — Change  of  Venue. 

The  discharge  of  a  person  charged  with  felony  on  his  examination  before  a 
committing  magistrate,  is  no  bar  to  a  second  examination  before  the 
same  or  a  diU'ereut  magistrate,  on  another  complaint  charging  the  same 
offense. 

Under  the  Nebrnska  statute,  providing  for  a  change  of  venue,  but  one  change 
of  venue  can  be  liad  for  the  same  cause,  in  the  same  proceeding. 

Maxwkll,  C.  J.  Tliis  is  an  ap])lication  for  a  writ  of  hahcns 
corpus.  Tlie  application  states  that  the  petitioner,  on  the  niiio- 
teenth  day  of  January,  188U,  was  arrested  and  brought  before 
the  county  judge  of  Gage  county  for  examination,  on  a  warrant 
issued  by  tlie  coroner  of  said  county,  and  that  thereupon,  on  the 
twentieth  of  said  month,  said  judge,  in  tlie  presence  of  tlie 
accused,  proceeded  to  inquire  into  tiie  charge  of  manslaugli- 
ter  made  against  said  Garst,  and  that  uj)on  a  full  examina- 
tion of  said  charge  said  judge  found  that  no  crime  had  been 
committed,  and  thereupon  discliarged  the  accused,  which  judg- 
ment and  order  still  renuiins  in  full  force  and  unrever.sed.  The 
application  also  states  that  on  the  twenty-second  day  of  January, 
1880,  after  said  Garst  had  been  discharged  by  the  order  and 
judgment  of  said  county  judge,  a  warrant  was  issued  by  one 
E.  M.  Hill,  a  justice  of  the  peace  of  said  county,  and  that  there- 
upon said  Garst  was  again  arrested  and  taken  before  said  justice 
to  answer  the  charge  of  killing  one  Peter  Keller,  upon  which 
charge  ho  had  been  examined  and  discharged  by  the  county 
judge;  that  then^after  said  prisoner  obtained  a  change  of  venue, 
because  of  the  interest  of  said  Hill,  said  catise  being  transferred 
to  one  Joseph  Li>we.  a  justice  of  the  peace  of  said  <'ounty ;  that 
on  the  twenty-third  day  of  said  month  the  petitioner  objected  to 
the  jurisdiction  of  said  justice  to  again  examine  into  said  cause, 
and  asked  to  be  dis(Oiarged,  which  objection  was  overruliid;  that 
on  the  thirtieth  day  of  January  said  petitioner  made  applicatiuu 


if   M 


EX  PARTE  GARST. 


G19 


for  a  chaiii^e  of  venue,  and  tiled  an  affidavit  with  said  justice 
before  eiitt'riii<^  upon  the  merits  of  the  case,  stating  tliat  the 
defendant,  could  not,  as  he  verily  believed,  liave  a  fair  and 
impartial  hearing  before  said  justice,  on  account  of  his  bias, 
which  motion  was  overruled  ;•  that  thereupon  an  examination  of 
the  petitioner  was  had  before  said  justice,  and  lie  was  bound  over 
in  the  sum  of  $1,300  for  his  appearance  at  the  next  term  of  the 
district  court,  in  default  of  which  he  was  comniittcd  to  the  jail 
of  said  county,  and  a  copy  of  the  warrant  of  conimitment  is  set 
out  in  the  application. 

The  principal  points  upon  which  it  is  claimed  the  petitioner 
should  be  discharged  are :  First.  That  having  been  discharged 
by  the  county  judge,  he  could  not  again  be  arrchted  aiul  exam- 
ined for  the  same  oifense.  Second.  That  the  justice  of  the 
peace,  Lowe,  should  have  granted  a  change  of  venue. 

Section  286  of  the  Criminal  Code  provides  that  "whenever  a 
complaint  in  writing  and  upon  oath,  signed  by  the  complainant, 
shall  be  tiled  with  the  nuigistrato,  charging  any  person  with  the 
commission  of  an  oifense  against  the  laws  of  this  state,  it  shall  be 
the  duty  of  such  magistrate  to  issue  a  warrant  for  the  person 
accused,  if  he  shall  have  reasonal)le  grounds  to  believe  that  an 
oifense  has  bi'en  committed." 

Se(!tion  ;{U"2  proviiles  that  "if,  upon  the  whole  examination,  it 
api)ears  tliat  there  has  been  no  (jf^ense  committed,  or  that  there 
is  not  probable  cause  for  holding  the  pri>oner  to  answer  the 
offense,  he  shall  he  discharged." 

An  examination  of  a  person  accused  of  a  felony  before  a  com- 
mitting magistrate  is  in  no  sense  a  trial.  If  so,  the  officer  would 
have  no  jurisdiction  whatever.  The  object  of  an  examination  is: 
P^irxt.  To  ascertain  whether  an  oifense  has  heen  committed ; 
/it'coiid,  if  so,  whether  there  is  ])robable  cause  to  believe  that  the 
accused  committed  it.  AVhere  a  complaint  is  made  under  oath, 
before  a  magistrate,  charging  a  }»arty  with  the  connnission  of  an 
oifense,  such  magistrate  has  authority  to  issue  a  warrant  for  the 
arrest  of  the  accused,  and  the  examination  which  follows  is  for 
tlio  purpose!  of  detiu-mining  whether  suflicient  cause  exists  for 
his  retention  to  abide  the  action  of  the  grand  jury.  The  grand 
jury  may  refuse  to  indict  even  if  the  accused  is  hound  over,  or 
they  nuiy  find  an  indictment  even  if  he  is  discharged.  But  liis 
discharge  by  one  magistrate  is  no  har  to  an  examination  for  the 
eame  offense  in  case  the  proper  complaint  is  nuide  before  tlie 


1! 


R.i 


.V'-'i 


?k!„      •! 


i%. 


1^^ 

*    1    >. 


I 


620 


AMERICAN  CRIMINAL  REPORTS. 


eanie  or  another  magistrate.  It  is  urged  that  a  party  accused  of 
an  offense  might  thus  be  subjected  to  great  anjiojanoe  by  reason 
of  repeated  re-examinations.  While  this  is  true,  and  if  there  is 
not  a  reasonable  ground  of  suspicion,  a  party  may  maintain,  in  a 
proper  case,  an  action  for  malicious  prosecution  for  injuries  sus- 
tained by  such  prosecutions,  yet  such  re-examinations  attord  no 
grounds  of  themselves  to  justify  the  issuance  of  a  writ  of  hahem 
corpus. 

As  to  the  second  proposition,  the  act  to  allow  "  a  change  of 
venue  in  civil  and  criminal  proceedings  before  justices  of  the 
peace,  on  account  of  the  interest,  bias  or  prejudice  of  the  jus- 
tice," ai)proved  March  25,  1871,  provides  "that  in  all  civil  and 
criminal  proceedings  before  justices  of  the  peace,  any  defendant 
in  such  proceedings  may  Jipply  for  and  obtain  a  change  of  venue 
hy  filing  an  atHdavit  in  the  case  made  by  the  defendant,  his 
agent  or  attorney,  stating  that  the  defendant  cannot,  as  he  verily 
])elieves,  liave  a  fair  and  impartial  hearing  in  the  case  on  account 
of  the  interest,  bias  or  prejudice  of  the  justice,  and  by  jiaying  the 
costs  now  re(juired  to  be  i)aid  by  defendaitt  on  cluingo  of  venue, 
for  the  causes  and  in  the  cases  mentioned  in  chapter  four,  of  title 
thirty,  part  two,  of  the  Revised  Statutes,  ami  thereupoti  the  pro- 
ceedings sliall  1)0  transferred  to  the  nearest  justice  of  the  peacte  to 
wliom  the  said  objet^tions  do  not  apj>ly,  of  the  sami-  county,  to 
be  j)ro('eeded  with  in  the  nnmner  j)ointed  out  for  \\w.  transfer 
and  procedure  in  cases  of  change  of  venue  for  cause  mentioned 
in  said  section  four."  This  act  applies  to  all  proceedings,  civil 
and  criminal,  before  justices  of  the  peace,  and  when  a  proper 
athdavit  is  filed  stating  tlie  facets  re(|uired  by  the  statute,  and  the 
application  is  made  bi^fore  entering  upon  the  merits  of  tlie  case, 
the  justice  hiis  no  discretioti  in  tiie  premises,  but  must  make  the 
change  as  desired.  If  objections  iire  known  to  exist  against  tlie 
nearest  justice  to  whom  the  cause  could  be  transferred  at  tlie 
time  the  application  is  made,  they  should  be  <tated  in  the  atlida- 
vit,  or  brought  to  the  attention  (»f  the  jiistici-  before  the  change 
is  made,  and  if  not  so  brought  to  his  iittention  they  will  lie 
waived.  No  second  (tliange  in  the  same  |)roeeeiling  will  be 
allowed  for  the  same  cause. 

In  the  case  at  bar  in*  (»bjections  were  made;  by  (rarst  or  his 
attorneys  to  the  justice  Lowe  at  the  tinu'  the  (Oiaiige  of  venue 
was  made  by  the  justice  Hill;  nor  is  there  anything  iti  rlie 
record  showing  tluit  they  were  not  aware  of  any  bias  on  his  part 


^mmm^ 


STATE  V.  WILES. 


acdised  of 
i  hy  rea.son 

if  tliere  is 
intain,  in  a 
ijuries  siis- 
;  afford  no 
;  of  haheiis 

change  of 
ires  of  the 
af  tlie  ju8- 
II  civil  and 

defendant 
e  of  venue 
endant,  Ids 
IS  he  verily 
on  account 

paying  the 
}  of  venue, 
)ur,  of  title 
on  the  |>i'i>- 
he  peace  to 

county,  to 
Ik!  transfer 

mentioned 
dings,  civil 
I  a  proper 
te,  and  the 
>f  the  case, 
t  make  the 
against  the 
•red  at  the 
1  the  atlida- 

tlie  change 
cy  will  he 
Mg    will   he 

arst  or  his 

;■('  of  venue 

ling  in   the 

on  his  [)art 


621 


until  after  the  cause  had  been  transferred  to  him.  This  should 
appear  in  the  record  to  be  available ;  but  even  if  it  did,  this  is 
not  a  proceeding  to  correct  errors  in  the  proceedings  of  the  jus- 
tice, and  when  there  is  sufHcient  evidence  of  probable  cause 
against  the  accused,  such  errors  afford  no  grounds  for  relief  in 
this  proceeding. 

Tlie  law  as  to  change  of  venue  was  designed  to  give  a  defend- 
ant a  trial  or  examination  before  a  justice  having  neither  interest 
nor  bias  nor  prejudice  against  him,  and  so  far  as  it  secures  fair 
and  impartial  trials  and  examinations  it  is  conducive  to  justice. 
But  it  cannot  be  denied  that  changes  of  venue  are  fretjuently 
sought  on  the  most  trivial  and  flimsy  pretexts,  and  when  the  affi- 
ant would  And  it  difticult  to  assign  any  valid  reason  for  bis 
so-called  belief  as  to  the  interest,  bias  or  prejudice  of  the  justice. 
No  particular  ol)jection  is  shown  to  the  warrant,  and  it  seems  to 
be  sufficient. 

As  the  application  fails  to  show  a  cause  of  unlawful  imprison- 
ment, the  writ  must  be  denied. 

Writ  denied. 


State  v.  Wiles. 

(Minnesota.     Opinion  liled  March  1,  1880.) 

A  conviction  for  simple  larceny  of  ti  Imt  (of  the  v.ilue  of  four  dolln-  s)  is  a 
bar  to  an  indictment  for  luroeny  of  the  same  from  a  shop,  the  stealing  ia 
both  cases  being  one  and  the  same. 

Certifled  from  district  court,  Freeborn  county. 
John  A.  Lovely,  for  respondent. 
0.  Mosness,  for  appellant. 

Berry,  J.  The  defendant  was  indicted  in  the  district  court 
for  Freeborn  county,  for  stealing  a  hat  (of  the  value  of  tour 
dollars)  in  a  shop.  His  plea  was  that  he  had  been  duly  convicted 
of  the  same  offense  by  the  city  justice  of  the  city  of  Albert 
Lea,  in  that  he  had  been  so  convicted  of  simple  stealing  of  the 
hat,  though  not  of  stealing  the  same  in  a  shop.  For  the  pur- 
poses of  this  case,  it  is  sutticiently  accurate  to  say  that  the  crim- 
inal jurisdiction  of  the  city  justice  of  Albert  Lea  is  the  same  as 
that  of  a  justice  of  the  peace.    Simple  larceny  of  property,  not 


■•■fii 


622 


AMERICAN  CKTMTNAL  REPORTS. 


ifi' 


■Il- 


l's,^ 


"t,> 


exceeding  twenty  dollars  in  value,  is  a  inisdeineanor,  punishable 
by  imprisonment  in  the  county  jail  not  more  than  three  months, 
or  by  line  not  exceedin<if  one  hundred  dollars:  Gen.  St.,  1878, 
c.  95,  sec.  25. 

Larceny  in  a  shop  is  a  felony,  punishable  by  imprisonment  in 
the  state  prison  not  more  than  three  years,  nor  less  than  one 
year,  or  by  imprisonment  In  the  county  jail  not  more  than  one 
year,  nor  less  than  three  months,  or  by  fine  not  exeeeding  five 
hundred  dollars :     Id.,  sec.  23. 

These  references  made  it  appear  that,  in  contemplation  of  the 
statute,  larceny  in  a  shop  (which  is  a  species  of  compound  lar- 
ceny) is  a  higher  oflFcnse  than  simple  larceny  of  property  not 
exceeding  twenty  dollars  in  value.  The  question  for  us  is, 
whether  conviction  for  the  latter  is  a  bar  to  an  indictment  for 
the  former,  the  statute  in  both  cases  being  one  and  the  same. 

In  chapter  one  hundred  and  fourteen,  section  nineteen,  Gen- 
eral Statutes,  1878,  it  is  provided  that  "  upon  an  indictment  for 
an  offense  consisting  of  different  degrees,  the  jury  may  find  the 
defendant  not  guilty  of  the  degree  charged  in  tlie  iiidictiuoiit, 
and  guilty  of  any  degree  inferior  thereto;  upon  an  indictment 
for  any  olfeiise,  tlie  jury  may  iind  the  defendant  not  guilty  of  the 
commissidu  tliereof.  and  guilty  of  an  attempt  to  commit  the 
same;  upon  an  indictment  for  murder,  if  the  jury  find  the 
defendant  not  guilty  thereof,  they  may,  U])on  the  ssame  indict- 
ment, fijid  the  defendant  guilty  of  manslaughter  in  any  degree. 
In  all  other  cases,  the  defendant  may  be  found  guilty  of  any 
offense,  the  commission  of  which  ia  necessarily  included  in  that 
with  which  he  is  cliarged  in  the  indictment." 

Under  the  latter  provision  of  this  section,  a  person  indicted 
for  larceny  in  a  shop  can  properly  be  coi.victed  for  simple  lar- 
ceny, the  commission  uf  siiii[)le  larceny  being  necessarily  included 
in  compound  larceny  from  a  shop:  State  o.  Owcnn,  22  Minn., 
238;  State  V.  Vadnalu,  21  Minn.,  3S2;  State  v.  Em,  8  Minn., 
220,  and  see,  also,  Gen.  St.,  1878,  c.  91,  sec.  11. 

The  constitution  of  this  state  provides  that  "  no  person  for 
the  same  offense  shall  be  put  twice  in  jeopardy  of  punishment." 

The  offense  of  simple  larceny,  being  included  in  the  offense 
of  compound  larceny  from  a  shop,  if,  after  having  been  con- 
victed of  simple  larceny,  a  person  can  be  convicted  of  compound 
larceny  from  a  shop,  the  act  of  stealing  being  the  same  in  both 
oases,  the  result  is  that  he  is  twice  put  in  jeopardy  for  the  simple 


4}'^ 


STATE  f>.  WILES. 


623 


larceny.  If  after  having  once  been  punished  for  the  simple 
larceny,  he  is  again  punished  for  a  compound  larceny,  in  which 
the  simple  larceny  is  included  and  of  which  it  is  a  necessary 
ingredient,  then  he  is  twice  punished  for  the  same  lart'eiiy — once 
upon  his  conviction  of  simple  larceny  alone,  and  a  second  time 
upon  his  conviction  of  the  same  simple  larceny  as  a  part  of  a 
compound  larceny.  This  double  conviction  and  punishment  are 
forbidden  by  the  constitution.  As  to  the  proposition  involved 
in  this  conclusion,  the  authorities  are  irreconcilable,  but  we  think 
it  is  supported  by  the  weight  of  authority  and  the  better  reason : 
Regina  v.  Elsiinjton^  9  Cox  Cr.  Cases,  88;  Com.  v.  Curtis,  11 
Pick.,  133.  And  see  Com>.  v.  Cunningham,  13  Mass.,  245  ;  State 
V.Lewis,  27  Hawks.,  98;  State  v.  Shepard,  7  Conn..  54;  State 
V.  Chapin,  2  Swan.,  493 ;  1  P.ish.  Cr.  Law,  sees.  885-889,  et 
seq.,'  1  Bennett  and  Heard  Lead.  Or.  Cases  (2d  ed.),  538,  where 
the  following  rule  of  law  is  laid  down,  viz. :  "  A  former  con- 
viction or  acquittal  of  a  minor  offense  is  a  bar  to  a  prosecution 
for  the  same  act,  charged  as  a  higher  crime,  whenever  the 
defendant  on  trial  of  the  latter  might  be  legally  convicted  of 
the  former,  had  there  bccti  no  other  prosecution."  In  1  Whar- 
ton's American  Criminal  Law,  section  503,  the  stateiiicnt  is  that 
"if,  on  a  triiil  of  the  major  offense,  there  can  he  a  conviction  of 
the  minor,  then  a  former  conviction  or  acquittal  of  the  minor 
will  bar  the  major." 

These  authorities  all  proceed  upon  the  basis  that  a  second  con- 
viction, after  such  former  conviction,  is  a  putting  in  jeopardy 
twice  for  the  same  offense.  The  authorities,  however,  do  not 
hold,  and  we  are  not  to  be  understood  as  holding,  that  a  former 
conviction  of  a  minor  offense,  obtained  by  fraud  and  collusion, 
for  the  very  purpose  of  preventing  a  conviction  of  a  major 
offense,  will  bar  a  second  prosecution  for  the  latter. 

Our  answer,  then,  to  the  question  certified,  is  that  the  convic- 
tion of  simple  larceny  before  the  city  justice  of  Ali)ert  Lea  is  a 
bar  to  a  prosecution  for  the  compound  larceny  charged  in  the 
indictment. 


i^i 


fr 


} ' 


.^'r-i 


UiU 


J-       ? 


^  I   " 


624  AMERICAN  CRDHNAL  REPORT& 

Bbneau  v.  Statb. 

(3  Lea,  Tenn.,  720.) 

Homicide:    Con»(able  killing  priwner  to  prevent  hit  eteape 

A  constable  has  no  riijlit  to  kill  a  prisoner,  in  custody  for  a  misdemeanor,  to 
prevent  his  escape;  and,  if  he  tloes  so,  he  will  be  guilty  of  murder  or 
manslaughter,  as  the  case  may  be. 

McFaki.a.vu,  J.  The  prisoner  appeals  from  a  conviction  of 
manslaughter  for  the  killing  of  Vineyard  Thomafl. 

The  facts  are  that  Thonias,  the  deceased,  was  arrested  by  the 
pri.soner,  who  was  a  constable,  uiuler  a  warrant  charging  an 
assault  and  battery,  before  the  justice  of  the  peace.  Thomas 
pleaded  iruilty,  and  was  ad  judifcd  to  pay  a  fine  and  costs,  and  in 
default  of  security  was  committed  to  jail,  and  in  the  execution  of 
a  mittimus  issued  by  the  justi(!e  for  that  purpose,  the  prisoner 
started  with  Thomas  to  the  county  jail,  accompanied  by  another 
person  as  guard.  On  the  route  Thomas  started  to  run  and  malxe 
his  escai)e.  Neitlier  tlie  prisoner  or  his  guard  pursued,  but  after 
connnanding  Thomas  three  times  to  halt,  and  not  being  obeyed, 
the  prisoner  tired  two  shots  at  Thomas,  one  of  which  took  effect, 
killing  him  almost  instantly.  Tiie  prisoner  is  shown  to  be  a  man 
of  go<jd  character,  and  he  expressed  regret  at  the  result,  saying 
that  he  did  not  intend  to  kill  the  deceased. 

Tlie  latter  was  of  bad  character  for  violence,  and  had  threat- 
ened that  he  would  not  submit  to  arrest.  The  law  on  this  stib- 
ject,  as  laid  down  by  Mr.  IJishop,  is,  in  substance,  that  an  officer 
having  a  prisoner  in  custody  for  felony,  who  attempts  escape, 
will  be  excused  for  killing  hinx  if  he  cannot  be  otherwise  retaken, 
but  if  he  can  be  othfirwise  retaken,  in  any  case,  witliout  resort  to 
such  harsh  measures,  it  will  be  at  lejist  manslaughter  to  kill  him. 
But  in  cases  where  the  person  slain  is  arrested  or  held  in  custody 
for  a  misdemeanor,  and  he  fly  or  attempt  to  escape,  it  will  l)e 
murder  in  the  olHcjer  to  kill  him,  although  he  cannot  be  other- 
wise overtaken ;  yet,  under  some  circumstances,  it  may  be  only 
tnanslaughter,  as  if  it  appeared  that  death  was  not  intended : 
2  iiishop's  Cr.  Law,  sees.  CAS,  049. 

It  is  considered  better  to  allow  cme  guilty  oidy  of  a  misde- 
meanor to  escape  altogether  than  to  take  his  life.     And  we  may 


nENFATT  «.  STATE. 


$3'5 


lomeanor,  to 
•f  murder  or 


iiviction  of 

tod  by  the 
larging  an 
!.  Thomas 
j8ts,  and  in 
xi't'ution  of 
lie  prisoner 
by  anothor 
n  and  nial<ft 
d,  but  after 
ing  obeyed, 
took  effect, 
to  he  a  man 
salt,  saying 

lad  threat- 
)n  this  H»ib- 
it  an  officer 
pts  escape, 
ise  retaken, 
ut  resort  to 
to  kill  him. 
in  custody 
,  it  will  he 
)t  be  other- 
ay  be  only 
t  intended : 


add  that  it  may  be  a  question  worthy  of  consideration,  whether 
the  law  ought  not  to  he  inoditied  in  respect  t(t  the  lower  grade  of 
felonies,  especially  in  view  ol'  the  large;  iuiiid»cr  of  crimes  of  this 
character  created  hy  coiiiparativ(;ly  recent  legishition,  whether  as 
to  these  even  e^'apc  would  nut  he  l)etter  than  to  tak(!  life.     The 
charge  of  the  jiuige  in  this  case  was  in  accord  with  the  law  as 
above  stated,  and  the  jury  having  given  the  pristnu-r  the  henoiit 
of  all  doubts,  and  convicted  him  of  the  lower  grade  of  homicide. 
It    is  argned   that    the  otTejise   for   which   the  deceased   waa 
arrested  was  in  reality  a  feloidous  assault,  and  the  prisoner  had 
the  right  to  hold  him  in  custody  for  this  grade  of  offense;  but  it 
clearly  api)ear8  that  the  warrant  under  which  he  was  arrested 
charged  only  an  assault  and  battery,  and  the  judginent  and  mitti- 
mus of  the  justice  only  (tommittiMJ  him  in  default  of  security  for 
tine  and  costs  for  a  misdemeanor. 

We  see  nothing  to  change  the  princi))le,  in  the  fact  that  the 
deceased  had  been  a<ljudged  to  pay  the  fine  and  costs  by  tii(!  jus- 
tice of  the  peace,  as  to  the  dutii-s  of  the  officer.  His  duties  were 
the  same,  whether  he  held  tin;  prisoru^r  in  cuHt.o(ly  after  or  before 
the  judginent  of  the  justice,  'i'lie  prisoner,  doiihtless,  acted 
under  the  belief  that  erroneously  pnivails  as  to  the  rights  of  a 
public  officer — that  is,  that  he  may  lawfully  kill  a  prisoner  if  he 
fails  to  obey  his  command  to  halt.  This  is  a  very  ernineitiis  and 
very  fatal  doctrine,  and  must  he  correctcMJ,  Officers  should 
landerstand  that  it  is  their  duty  to  use  sucth  means  to  secure  their 
prisoners  as  will  enable  them  to  hold  them  in  custody  without 
resorting  to  the  use  of  firearms  or  dangcirous  weapons,  and  that 
they  will  not  be  excused  for  taking  life  in  any  case,  where,  with 
diligence  and  caution,  the  prisoner  could  he  otherwiHO  held. 

While  tlie  prisoner,  in  this  case,  seems  to  liavo  honestly  enter- 
tained the  opinion  that  his  duty  recpiircd  him  to  do  what  he  did, 
and  to  have  acted  entirely  without  malice,  and  wliile  lie  is  enti- 
tled to  strong  sympathy,  still  we  are  constrained  to  affirm  the 
judginent. 

Vou  II.— 40 


of  a  misde- 
nd  we  may 


I"': 


1 


\h 


ri 


Nt 


»)'.' 

B^' 


i\  '■'<   V,  :  '  i 


El   ;S:^. 


W!  ■■:f  •:  ■■' 


ik 


626  AMERICAN  CRIMINAL  REPORTa. 

State  v.  Kaufman. 

(Iowa.    Opinion  filed  September  18,  1879.) 

Jury:     Waiver. 

A  defendant  in  a  criminal  action  may,  with  tlie  consent  of  the  state  and 
court,  waive  a  statute  enacted  fur  his  heni'ttt,  or  liis  right  to  be  tried  by  a 
full  jury  of  twelve.    Evidence  held  sutticient  to  support  the  verdict. 

Appeal  from  Iowa  district  court. 

Tlie  defendant  was  indicted  for  ntterinff  and  publishing  a 
forged  promissory  note  with  intent  to  defraud.  Upon  the  trial, 
one  of  the  jurors  "  being  ill,  with  the  consent  of  defendant  said 
juror  was  discharged,  and  with  the  consent  of  the  defendant  tlie 
trial,  before  eleven  jurors,  was  resumed  and  concluded  by  the 
order  of  the  court."  There  was  a  verdict  of  guilty.  A  motion 
was  filed  in  arrest  of  judgment,  and  for  a  new  trijil,  on  the 
ground  that  no  legal  judgment  could  be  rendered  on  such  a  ver- 
dict.    Both  motions  were  overruled  and  judgment  pronounced. 

The  defendant  appeals. 

Hedges  cfe  Alverson  and  J.  W.  Sllater,,  for  apjicUant. 

J.  F.  McJunkin.,  attorney-general,  for  the  state. 

Seevers,  J.  1.  It  is  provided  by  statute  that  "the  jury 
consists  of  twelve  men  accepted  and  sworn  to  try  the  issue.  All 
qualified  electors  of  the  state  *  *  *  are  competent  jurors 
in  their  respective  counties : "     Code,  sees.  227,  4397. 

Both  these  statutory  provisions  have  equal  force.  If  one  can 
be  waived,  so  may  the  other.  It  was  said  in  The  St<(te  v.  Groom, 
10  Iowa,  308:  "If  the  defendant  knew  at  the  time  the  jury 
was  sworn  that  any  of  them  were  not  qualified  to  act  as  jurors, 
he  would  have  waived  his  right  to  object  thoreifter."  This  deci- 
sion was  made  under  tlie  Code  of  1S51.  But  sections  lO.'JO  and 
2971  thereof  are  precisely  the  same  as  sci-tions  227  and  4397  of 
the  Code.  That  a  defendant  in  a  criminal  acHon  by  silence  may 
waive  the  benefit  of  a  statutory  provision  was  clearly  recognized. 
There  are  several  other  decisions  which  re<'ognize  the  same  prin- 
ci})le:  Hwjhes  v.  The  State,  4  Iowa,  554;  The  State  v.  OKlriin- 
der,  18  Iowa,  435  ;  The  State  v.  Rled,  20  Iowa,  413,  and  TU 
State  V.  Felter,  25  Iowa,  67.     It  must,  therefore,  be  regarded  as 


V9 


8TA.TE  e.  KAUPMAIT. 


tlie  settled  doctrine  in  this  state  that  a  defendant  in  a  criuiinal 
action,  with  the  consent  of  tlie  state  and  conrt,  may  waive  a 
statnte  enacted  for  liis  benefit. 

2,  The  constitution  provides  that  "the  right  of  trial  by  jnry 
shall  remain  inviolate,  *  *  *  but  no  person  shall  be  deprived 
of  life,  liberty  or  property  without  due  process  of  law : "  Arti- 
cle 1,  sec.  9,  Code,  770. 

That  the  jury  contemplated  by  the  foregoing  provision  should 
consist  of  twelve  competent  persons,  will  be  conceded.  The 
question  for  determination  is,  whetlier  a  defendant  in  a  criminal 
action,  with  the  consent  of  the  stata  and  court,  can  waive  the 
foregoing  constitntional  provision  and  is  bound  thereby.  The 
first  impression  would  be,  we  think,  that  a  constitutional  provi- 
sion could  be  waived  as  well  as  a  statute.  Both,  in  this  respect, 
have  e(|ual  force,  and  were  enacted  for  the  benefit  and  protection 
of  persons  charged  with  crime.  If  one  can  be  waived,  why  not 
the  other?  A  conviction  can  only  be  legally  obtained  in  a  crim- 
inal action  upon  competent  evidence;  yet,  if  the  defendant  fails 
at  the  proper  time  to  object  to  such  as  is  incompetent,  he  cannot 
afterwards  do  so.  He  has  a  constitutional  right  to  a  speedy  trial, 
and  yet  he  may  waive  this  provision  by  obtaining  a  continuance. 
A  plea  of  guilty  ordinarily  dispenses  with  a  jury  trial,  and  it  is 
thereby  waived.  This,  it  seems  to  us,  effectually  destroys  the 
force  of  the  thought  that  "the  state  (the  public)  have  an  interest 
in  the  preservation  of  the  lives  and  the  liberties  of  the  citizcnis. 
and  will  not  allow  them  to  be  taken  away  without  due  process  of 
law."  The  same  thought  is  otherwise  expressed  by  Blackstone, 
vol.  4,  189,  that  "  the  king  has  an  interest  in  the  preservation  of 
all  his  subjects."  It  matters  not  whether  the  defendant  is  in 
fact  guilty,  the  plea  of  guilty  is  just  as  effectual  as  if  such  was 
the  case.  Reasons  other  than  the  fact  that  he  is  guilty  may 
induce  a  defendant  to  so  plead,  and  thereby  the  state  may  be 
deprived  of  the  services  of  the  citizen,  and  yet  the  state  never 
actively  interferes  in  such  case,  and  the  right  of  the  defendant 
to  so  i)lead  has  never  been  doubted.  He  must  be  permitted  to 
judge  for  himself  in  this  respect.  So  in  the  case  at  bar.  The 
defendant  may  have  consented  to  be  tried  by  eleven  jurors, 
because  his  witnesses  were  there  present  and  he  might  not  be  able 
to  get  them  again,  or  that  it  was  l)est  he  should  be  tried  by  the 
jury  as  thus  constituted.  Wliy  sliould  he  not  be  permitted  to 
dose?    Why  hamper  him  in  this  respect?    Why  restrain  his 


628 


AMERICAN  CRIMINAL  REPORTS 


mm-'i 


i^A>- ' 


f^Sv- 


Hlji-'rty  or  riijilit  to  do  as  lie  believed  to  be  for  bis  interest? 
Whatever  nib'  Is  adopted  affects  nut  only  the  defendant,  but  all 
otliers  siniilarly  situated,  no  matter  bow  nnicb  tbey  desire  to 
avail  tbeinsi'lvcs  of  tbe  rigbt  to  do  wbat  tbe  defendant  desires 
to  repudiate.  We  are  unwilling  to  establisb  sucb  a  rule.  It 
may  be  said  that  if  one  juror  may  be  dispensed  with  so  may  all 
but  one,  or  that  sucli  trial  may  be  waived  alto_s;etlier  and  tbe  trial 
had  to  tbe  court.     This  does  not  necessarily  follow. 

It  will  be  time  eiiouijb  to  determine  sucb  questions  wben  they 
arise.  Certain  it  is  that  the  ri<i;bt  to  dispense  witb  one  or  more 
jurors  cannot  be  exercised  witbout  tbe  consent  of  tbe  court  and 
state,  and  it  may  safely,  we  think,  be  left  to  them  as  to  when  or 
to  what  extent  it  may  be  exercised.  AV^e,  liowever.  may  remark, 
without  cominittin<?  ourselves  thereto,  that  it  is  difficult  to  sou 
why  a  defendant  may  not,  with  the  consent  of  the  court  and 
state,  elect  to  be  tried  by  the  court.  Siiould  snch  become  the 
established  rule,  many  chanjyes  of  venue  based  on  the  prejudice 
of  the  inhai)itant8  of  the  county  against  the  defendant  might  he 
obviated.  The  authorities  are  not  in  accord  on  the  question 
under  discussion.  The  foregoing  views  are  sustained  by  ('din- 
mfnnoriilfh  v.  Dailey  et  al.y  12  Gush.,  80;  2/ui'phi/  v.  Conumn,- 
WraUh,  1  Met.  Hvy.).  465;  Tyrav.  Same,  2  Mcit.  (Ivy).  1.  The 
crime  charged  in  these  cases  was  a  misdemeanor.  i)Ut  in  the  lirst 
case  this  fact  possessed  no  significance.  The  ruling  is  bascil  oti 
principles  applicable  to  all  criminal  actions.  We  arc  UMal)lc  to 
si'c  how  it  is  possible  to  draw  a  distinction  in  this  respect  between 
misdemeanors  and  felonies,  because  the  constitution  docs  not 
recognize  any  such  distinction.  The  contrary  conclusion  Wius 
reached  in  Cai}<',>me  v.  The  People,  IS  X.  Y.,  12S;  Alien  v. 
The  Shite,  54  Ind.,  161,  and  Bell  v.  The  State,  44  Ala.,  :«);?, 
In  neither  of  these  cases  was  the  question  largely  c(»nsidercd. 
Sul»stantially,  they  all  seem  based  on  the  thought  that  "it  woxM 
be  a  highly  dangerous  innovation,  in  reference  to  criminal  cases, 
upon  the  ancient  and  invaluable  institution  of  trial  by  jury,  and 
the  coii!-tit\itioii  and  law  establishing  and  securing  that  mode  of 
trial,  for  the  court  t(»  allow  (d'  any  iiuml)cr  short  oi'  a  full  panel 
of  twelve  jurors,  and  w(>  think  ouylit  not  to  be  tolerateij : '' 
(Jaiiceiiir  I'.  Til,'  I'kijiIi'.  Iiefore  cited.  This  would  have  been 
nuH'h  more  ('(iiivincing  ami  satisfactory  if  we  iiad  been  iiifoiined 
why  it  would  be  "highly  dangerous"  and  should  "not  be  toler- 
ated," or  at  least  something  which  had  a  tendency  in  that  direc- 


STATE  «.  KAUFMAN. 


629 


tioii.  For  if  it  be  tnio,  as  stated,  it  certainly  would  not  be 
difficnlt  to  give  a  satistHctury  reason  in  support  of  the  strong 
language  used. 

In  Ballard  v.  The  State,  38  Texas,  504,  the  verdict  was  ren- 
dered by  thirteen  jurors.  It  was  set  aside;  but  it  does  not 
appear  whether  or  not  the  defendant  had  any  knowledge,  until 
after  verdict,  there  was  that  number  of  junjrs.  In  WilUama  et 
(U.  V.  T?he  State,  12  Ohio  St..  rt22,  a  jury  trial  was  waived,  and 
the  defendants  found  guilty  by  the  court.  On  appeal,  the 
attorney-general  submitted  to  a  reversal,  on  the  ground  that  a 
jury  trial  could  not  be  waived.  Tiie  case  was  disposed  of  by  the 
court  in  a  single  line,  by  saying  such  was  the  opinion  of  the 
court.  It  is  evident  the  case  was  not  very  elaborately  considered. 
The  following  cases  hold  that  a  trial  by  jury  cannot  be  waived. 
and  the  same  take  place  before  the  court:  Bond  v.  The  State, 
17  Ark.,  290 ;  The  People  v.  Smith,  9  Mich..  193 ;  /A'arju  v. 
The  State,  30  Md.,  259.  The  constitution  of  this  state  provides 
that  "  in  all  criminal  prosecutions  *  *  *  the  accused  shall 
have  the  right  *  *  *  to  be  confronted  with  the  witnesses 
against  him:"  Article  1,  sec.  10,  Code,  770.  In  Tha  State  v. 
Polsmi,  29  Iowa,  133,  "  it  was  agreed  in  open  court,  between  the 
district  attorney  and  counsel  of  di'fendant,  in  the  presence  of  the 
defendant  and  of  the  jury,  that,  in  order  to  save  riiiie  and  facili- 
tate the  trial  of  the  cause,  the  testimony  taken  upon  the  former 
trial  should  l)e  read  to  the  jury,  as  a  substitiite  for  the  oral  testi- 
mony of  the  witnesses  in  court." 

A  conviction  followed,  which  was  held  to  be  right,  and  tliat 
the  constitutional  provision  was  a  personal  right,  and  in  no  man- 
ner affected  the  jurisdiction  of  the  court,  ami  that  it  might  be 
waived.  This  decision  in  principle  is  idejitical  with  tlie  (.-ase 
at  bar.  If  one  constitutional  provision  may  be  waivi'd,  why 
not  another?  The  one  is  not  more  binding  or  obligatory  thau 
the  other.     Both  are  equally  imi)ortant. 

3.  No  exceptions  were  taken  to  the  instructions,  hut  in  the 
motion  for  a  new  trial  it  was  «)bjected  that  the  verdict  was  not 
supported  by  the  evidence.  If  the  jury  believed  the  witness 
Collins — and  they  must  have  done  so — the  conviction  is  undoubt- 
edly right.  Botli  the  district  court  and  jury  have  ])asse(l  U|)on 
the  suflic'iem^v  of  the  evicK-nce,  and  the  story  told  i)y  (,'ollins  is 
not  so  improbable  as  to  justify  us  in  disbelieving  him.  Certain 
objections  were  made  on  the  trial  to  the  admission  of  evidence. 


630 


AMERICAN  ClUMINAL  REPORTS. 


\       If 


Li 


m' 


m 


Tliese  are  not  in  arsjuineiit  of  counsel,  but,  as  is  our  duty,  we 
have  examined  them,  and  failed  to  tind  they,  or  any  of  tliera, 
are  well  taken. 

Ajfin/ied. 


State  v.  Hay8. 

(2  Leu,  Tcnn.,  156.) 

Former  Jeopardy  :     Verdict  in  absence  of  prisoner. 

If  the  jury  conic  into  court  and  render  a  verdict  of  guilty,  and  are  discharged, 
in  the  ahscncx-  of  the  prisoner,  who  is  in  the  custody  of  an  ollii  i>r  in 
anoliicr  roDni.  tl»e  prisoner  is  entitled  to  a  new  trial,  but  he  is  noi  cMi- 
tlid  to  II  liuiil  discharge. 

Tii{.\i:v,  J.  Tiie  defendant  was  indicted  for  and  convicted  of 
jrrand  brceny.  When  the  jiify  came  into  conr*  with  its  verdict 
the  accu.-ci]  wa.s  not  ]iresent,  but  was  in  the  custody  of  an  ulliccr, 
and  haiidculfcd,  in  another  room. 

After  the  jury  had  been  dischai\<;ed  and  had  retired,  the  |)ris- 
oner  was  brouu'lit  into  court,  when  he  moved  to  l)e  di.-ctliar^ed, 
whicli  was  done,  and  the  state  appealed. 

It  is  MOW  insisted  the  defendant  was,  by  the  proceeding  of  thai 
trial,  once  in  jeopardy,  and  cannot  lawfully  be  put  up(»n  triul  the 
K'cotid  time  for  the  sanu;  otfensi!. 

A  miml)er  of  case,<  are  cited  and  reli(Ml  upon  to  sustain  the 
position.  An  examination  of  the  (;ases  show  that  the  discliar;i:t> 
of  the  jury  was  without  consent  of  the  accused,  juul  befoi'e.  or. 
rather,  without  verdict.  All  proceed  np(»n  the  iiypothesis  that 
at  the  time  of  the  discharge  of  the  juries  there  was  a  chance  or  a 
probability,  or  at  least  a  possibility,  of  accpiittal.  and  that,  under 
the  circitmistances,  it  was  presumable  the  tlet'endant  could  not  be 
placed  it!  so  fav(»rable  |)osition  before  another  jni-y. 

The  rule  established  by  the  constitution  is  in  favor  of  life  and 
liberty,  and  is  meant  really  to  protect  airainsr  rept'tition  of  prose- 
cution wlien  there  has  been  one  ac(piittal  or  citnvietion  inuip- 
pealed  from  and  tinreverse(i.  It  does  not  obtain  in  a  ease  like 
the  present,  when  the  prisoiu'r  can  be  returneci  to  as  favorable 
mirrounding  on  a  second  trial  as  he  was  upon  tlie  first,  as  llie 
result  of  the  one  showa,  and  will  not  be  iiu'urririis^  the  jeopardy 
guarded  against  by  the  constitution  on  the  second  trial. 


STATE  V.  BLOEDOW. 


631 


The  cases  cited  have  gone  the  full  leii<,'th  of  securing  the  person 
accused  of  crime  protection  against  a  second  jeopardy,  and  we 
are  not  at  all  disposed  to  extend  the  construction.  It  was  error 
to  discharge  the  prisoner.  The  court  should  have  granted  a  new 
trial. 

Reverse  the  judgment,  and  remand  the  cause  for  trial. 


State  v.  Blokdow. 

(45  Wis.,  279.) 

Mayhem:    Intent  to  be  fmind  by  jury — Verdiel, 

In  criminal  law,  when  a  special  intent,  beyond  the  natural  consequences  of 
the  tiling  done,  is  essential  to  the  crime  charged,  such  special  intent  must 
be  pleaded,  proved  and  found. 

Where  defendant  had  ilestroyed  the  eye  of  a  person  by  throwing  a  stone  at 
him,  the  inrornmlioii  for  mayhem  charged  the  malicious  intent  in  the 
words  of  the  statute.  Verdict  that  defendant  was  ".Guilty  as  charged  in 
the  information,  with  the  malicious  intent  as  implied  by  law."  IL'ld, 
that  this  does  not  find  the  malicious  intent  as  a  fact  with  sufficient  cer- 
tainly to  sustain  a  judgment  for  mayhem. 

But  the  information  cliargmg  an  assault  and  battery,  the  verdict  will  sustain 
a  judgment  for  that  offense. 

Eeported  by  the  judge  of  the  municipal  court  of  Milwaukee 
county. 

Defendant  was  tried  ujjon  an  information,  the  third  count  of 
which  charged  that,  "on,"  etc.,  said  defendant,  "contriving  and 
intending  the  said  Jolm  Mcnnier  to  niiiim  and  disfigure,  in  and 
upon  the  said  John  Mennier,  unlawfully,  willfully  and  mali- 
ciously did  make  an  assault,  and  that  ho,  the  said  Charles  Bloe- 
dow,  with  malicious  intent,  then  and  there  to  maim  and  disfigure 
the  said  John  Meiinici-.  the  left  eye  of  him,  the  said  John  Men- 
nier, unlawfully,  willfully  iiiid  maliciously  then  and  there  did  put 
out  and  destroy."  The  verdict  found  defendant  "guilty  as 
cliarired  in  the  third  count  of  the  information,  with  the  malicious 
intent  as  implied  by  law." 

The  judge  of  the  municipal  court  reported  the  case  to  this 
court,  under  ti«e  statute,  for  a  dctcriiiiiiation  of  the  (juestion, 
whether,  u[)ou  the  verdict,  any  i)uiiishment  could  lawfully  be 
inflicted  on  the  defendant. 


>;■■       t 


¥''.--\ 


632 


AMERICAN  CRIMINAL  REPORTSL 


James  Tlickcox,  for  the  defendant. 

I^.  W.  Cotzhauaen,  of  counsel  for  the  state. 


J     !    'I      X'l  J 


Ryan,  C.  J.  The  defendant  was  charged  with  mayhem.  The 
statute  defining  the  crime  requires  the  assault  to  be  made  with 
malicious  intent  to  maim  or  disfigure.  Maiming,  without  intent 
to  maim,  is  not  within  the  statute.  The  information  charged 
the  malicious  intent  in  the  words  of  the  statute.  The  verdict 
found  the  defendaTit  guilty,  as  charged  in  the  information,  witli 
the  malicious  intent  as  implied  by  law.  And  the  question  certi- 
fied here  by  the  court  below  is,  whether  the  defendant  can  be 
punished  upon  the  verdict. 

Generally,  the  law  will  imply  an  intent  to  do  the  thing  done. 
But,  in  criminal  law,  when  a  special  intent,  beyond  the  natural 
consequences  of  the  thing  done,  is  essential  to  a  crime  charged, 
the  special  intent  must  be  pleaded,  proved  and  found.  The 
intent  may  be  proved  in  various  ways. 

Surrounding  circumstances  generally  go  far  to  show  it.  Some- 
times the  very  act  itself  does.  Thus,  if  one  shoot  another  with 
a  rifle  in  a  vital  part  of  the  body,  the  act  raises  a  presumption  of 
intent  to  kill,  unless  the  circumstances  under  which  it  is  done  go 
to  repel  the  presumption. 

So,  if  oi'e  throw  a  stone  at  another,  the  act  raises  a  prosunij)- 
tion  of  intent  to  injure  generally,  unless  repelled  by  the  ('irciiin- 
stances  under  which  it  is  done.  But  the  law  will  not  prcsiiiiu'  a 
special  intent  beyond  the  natural  conse(|uen(tt'.s  of  the  act  <l(tiie. 
The  special  malice  or  intent  is  a  fact  which  the  jury  must  liiid, 
to  warrant  judgment  on  their  verdict. 

The  difficulty  with  the  verdict  in  this  case  is,  that  the  jury,  in 
eifeot,  find  the  acrt,  but  leave  the  special  intent  or  malice;  to 
implication  of  law;  that  is  to  say,  they  find  the  defendant  guilty 
of  the  act  charged,  l)ut  leave  the  intent  of  the  act  to  the  judg- 
ment of  the  court.  The  verdict  is  very  vague,  but  this  ;i|tp(!iirs 
to  be  its  true  construction.  And  even  if  this  he  not,  the  verdict 
is  too  UMC(,'rtuin  to  support  a  judgment  for  inayhcm. 

The  facts  in  tjiis  case  go  far  to  illustrate  the  rule  as  it  ]iit« 
been  stated.  Tiie  defendant  threw  a  stone  at  aii(»ther.  The 
stone  destroyed  an  eye.  But  the  mere  throwing  of  the 
ptone,  of  itself,  indicates  no  intent  to  inflict  the  natural  injuiv, 
or  any  special  injury.  Such  an  injury  is  not  a  natural  conse- 
quence of  the  assault  connnitted.     If,  as  has  liaj)pened   to  tlie 


V 


STATE  r>.  BLOEDOW. 


63?? 


rhem.  The 
)  made  with 
thout  intent 
ion  charged 
rhe  verdict 
liition,  witli 
estion  certi- 
lant  can  be 

thing  done, 
the  natural 
ne  charged, 
ound.     The 

^  it.  Some- 
nother  with 
sumption  of 
t  is  done  go 

a  presuinj)- 
tlie  cinMini- 
:  prusuiiio  a 
je  act  ddiic. 
'  must  iind, 

tlie  jury,  in 
r  malit'o  to 
idant  guilty 
o  the  judg- 
this  appcjai's 
tlie  verdict 

U;  as  it  lias 
.ther.  The 
ing  of  the 
ural  irijuiT, 
tural  consc- 
jned  to  the 


disgrace  of  humanity,  one  engaged  in  a  fight  gonge  out  his 
adversary's  eye,  tlie  act— unexplained  by  circumstances— may  be 
pufficient  proof  of  the  malicious  intent  to  maim.  F.ut  the  mere 
throwing  of  a  sfoiie  is  generally  jjot  s\ifficient  evidence  of  an 
intent  to  maim,  merely  because  it  does  maim ;  for  that  result, 
though  possible,  must  be  rare,  and  may  hap])en  without  the 
intent  or  with  it.  Generally,  such  a  result  would  be  merely 
ac(Mdental. 

The  information  charges  an  assault  ai\d  battery.  The  verdict 
clearly  convicts  the  defendant  of  that,  and  for  tliat  the  defendant 
may  be  punished  :     Sullhmn  v.  Tlie  State,  44  Wis.,  .5itr). 

The  answer  of  this  court,  therefore,  to  the  question  certified 
hy  the  court  below  is,  that  the  defendant  nuiy  be  punished  upon 
the  verdict  for  assault  and  battery,  and  for  that  only. 

Note.— It  is  not  difflcnlt  to  understand  how  the  confused  ideas  of  fact  and 
law,  wliicli  are  exliil)iled  in  the  verdict  in  this  case,  found  tlieir  way  into  the 
jury  room.  Courts  have  been  in  the  habit  of  insiriuainir  juries  as  to  what 
"tlie  law  presumes"  from  a  given  state  of  facts.  Tlius,  juries  are  commonly 
told  that  "  the  law  presumes  a  man  to  intend  the  uatural  and  probable  con.se- 
qucnci's  of  bis  acts."  That  "from  a  willful  killing,  with  a  (lan,!,'crous  wea- 
pon, the  law  raises  a  presumption  of  malice,  and  Hint,  presumably,  it  is  mur- 
der in  the  second  degree."  That  the  "recent  iinexpliiined  jxissession  of 
Stolen  property  raises  a  presumption  that  the  person  in  whose  pos.session  it 
was  found  was  guilty  of  the  larceny."  Keceiviug  such  instructions,  it  is  little 
■wonder  that  the  jury,  in  this  case,  thought  the  law  was  ready  to  supply  the 
malicious  intent  which  they  neglected  to  find.  But,  in  truth,  it  will  be  found 
upon  investigation,  that  all  of  these  so-culled  presumptions  of  law  are  mere 
rules  of  practic(! — rules  of  experience  and  common  .s(!use — wliieh  are  slated  to 
juries  to  guide  and  assist  them  in  their  deliberations,  but  which  can  never,  att 
is  shown  by  tlu'  judgment  in  this  ease,  supi)ly  tlu!  existence  of  facts  alli'.ircd  in 
the  indictm(!nt,  and  which  the  jury  are  req\iired  to  find.  In  every  criminal 
case  the  intent  is  a  fact,  and  must  l)e  found  as  a  fa(!t  by  the  jury.  A  very 
clear  an<l  eloquent  siateinent  of  law  on  this  head  will  be  found  in  ErsUino's 
argument  in  support  of  the  rights  of  juries  in  the  Dean  of  St.  Asaph's  ease. 
A  v(!ry  siini)li'  test  will  determine  that  I  lie  so-called  presumptions  of  law 
are  mere  rules  .)f  practice.  If  in  a  homicide  ease,  the  jury  should  find  simply 
that  "they  found  that  the  defendant  killed  the  deiicased  by  shooting  him 
vith  II  pistol,"  would  any  juilge  bo  found  hardy  enough  to  jironounce  seu- 
teiiee  upon  it  a>  upon  a  verdict  of  g\iiliy  of  murder  in  the  set^ond  degret!  ? 
The  most  ratiuniil  do(!trine  ujion  this  subject  is  iinnouincii  liy  the  Supreme 
Court  of  Micliigiin,  in  llniiiillnii  v.  People,  2!l  .Midi.,  on  piigi'  l'.i;i.  'I'lie  court 
say:  "It  is  very  well  remarked  by  a  moilern  writer  on  evideii'c.  that  'artifi- 
cial i>r('Sunii)tion  can  never  be  safely  estiiblislied  as  means  of  proof  in  a  crim- 
inal case.  To  convict  an  iniiocciil  ninii  i-<  an  iict  of  jiosilive  injuslicr,  wbicli. 
Hccording  to  one  of  the  liest  iiiul  most  buniaiie  principles  of  our  law,  ciuinot 
be  expiated  by  the  conviction  of  an  hundred  criniiiials  who  migiit  otiiciwise 


III 


11) 


iS; 


634 


AjyiERICAN  CRIMINAL  REPORTS. 


have  escaped:  2  Ilalc,  289.  From  such  presumptions  the  common  law  Is 
justly  most  iibhorieiit;  and  hiijjpily  our  statute  hook  has  not  been  disgracud  by 
many  violations  of  the  hiunaue  principles  of  the  common  law,  in  this  respect : 
Stark  Ev.,  sec.  74;{.'  There  ix  im  c<incutm>n  or  presumption  nffad  which  k  not. 
entirely  witldn  the  diaiioKul  of  the  jury,  as  it  is  also  entirely  for  tlicra  to  deter- 
mine what  poi'lioii  to  Itclicve  or  disbelieve;  and  it  is  tlie  coiiscricnce  of  th(! 
jury  that  musl  pronounce  the  prisoner  guilty  or  not  guilty;     2  Hale,  313." 


State  v.  Griffith. 
(67  Mo.,  287.) 

Mabrtaok:     Unlowfiilly  joining  minor  in  marriage — Shfidenee  a$  to  minor' » 

appearance. 


In  a  prosecution  for  unlawfully  joining  a  minor  in  marriage,  without  the  con- 
sent of  lit^r  par  lit  or  Ltuardian.  the  dcfindant  has  no  right  to  sliow  the 
size,  appf'firance  ami  L'^encra!  development,  for  the  purpose  of  proving 
her  agi'.     'I'he  evidence  is  iiicoiupelent. 

If  sucli  evideiici'  is  reeeival)k'  in  initiaation  of  punishment,  its  rejection  will 
not  be  held  error  where  the  trial  judge  has  already  inflicted  the  lightest 
penalty  ])rovi(l('d  by  the  statute. 

In  a  prosecution  for  uiilawlully  joining  a  minor  in  marriage,  it  is  iiO  defense, 
that  the  res|)onil('nt  acted  in  good  faith,  and  that  lio  honestly  beiieved  the 
minor  to  be  of  full  age 


I'    '■-!  ■  ' 


m. 


NoiiTo.N,  J.  The  dot'oiidant  was  iiidicted  at  tlio  Decoinbor 
tiTiii  of  thu  cifcuit  court  witliiii  and  for  Knox  county,  for  mar- 
rvijiij;  a  niiiior  without  the  consent  of  licr  parent  or  guardian. 
Defeiuhmt  was  tried,  convicted,  and  his  piini.shinent  assessed  to 
one  month's  imprisonment  in  the  county  jail,  from  which  judg- 
ment lie  hits  ;ii)j)ealed.  The  indictment  is  framed  on  sections 
iive  and  eleven,  Wag.  Stilt.,  '.)3(»,  and  sutKcieiitly  charges  the 
offense  created  thereby.  The  evidence,  on  the  |»art  of  the  state, 
tended  to  establish  tlie  allegations  of  the  indictment,  and  the 
only  matter  of  error  complained  of  Wiis  the  refusal  of  the  court 
to  permit  a  witiu'sn,  on  tlie  part  of  tlu;  defendant,  to  state  the 
size,  a])pearan(*  and  general  development  <>f  Sai'ah  K.  Denios.s, 
the  minor  alleged  to  have  been  married,  at  the  time  the  defend- 
ant performed  tlie  ceremony. 

It  is  claimed  that  the  evidence  offered  was  admissible  for  the 
purpose  of  showing  that  said  Sarali  was  over  the  ag«^  of  eighteen 
yoare,  and  if  not  for  tliat  purpose,  it  should  have  been  received 


STATE  P.  GIUFFITII. 


635 


at  to  mtnor** 


in  mitiijation  of  pTiiiisliinent.  Iliul  the  witness  l)oon  pennittc«l 
to  answer  the  questions,  and  ^nvon  his  opinion  fonniUMl  upon  hw 
appearance  and  size,  tluit  the  said  Sarali  was  over  cij^htcen  years 
of  age,  we  cannot  perceive  how  it  would  have  relieved  defend- 
ant from  liability,  in  view  of  tlie  object  of  the  statute.  The 
law  provides  a  way  in  which  any  person  peiforniing  the  marria-re 
ceremony  may  protect  himself  from  the  penalties  it  imposes. 
In  tlie  case  of  Jiecl'lmm  v.  MmlK,  50  Mo.,  548,  where  the  minor 
was  nineteen  years  old,  it  was  held  that  the  fa(!t  that  he  had  the 
appearance  of  being  over  twenty-one,  and  had  induced  the 
defendant  to  perform  the  ceremony  l)y  falsely  representing  that 
he  was  of  age,  would  not  relieve  defendant  from  liability. 

"The  statutes  provides  the  means  by  which  a  person  perform- 
ing the  ceremony  may  protect  himself.  He  must  have  the 
written  consent  of  the  pariMit,  guardian,  or  other  person  having 
charge  of  tlie  miiU)r.  It  is  not  sulKcient  that  he  should  act 
under  the  honu  Jiih:  belief  that  such  minor  was  of  age.  IJis 
honest  mistake  in  this  regard  will  not  protect  him.  The  law 
explicitly  declares  what  is  nnpiired  for  his  protection,  and  unless 
he  adopt  the  means  pointed  out,  he  must  suller  theconsecpiences." 
In  regard  to  the  <pu'stioii  of  the  age  of  a  person,  family  records 
are  receivable  in  evidence,  and  general  repute  in  the  family  is 
sometimes  adm'ssible,  but  to  allow  the  question,  when  suscept- 
ible of  direct  proof,  to  be  determined  by  the  mere  opinions  of 
witnesses  founded  on  size  and  general  appearance,  finds  no  sup- 
port (.'ither  in  principle  or  authority.  The  statement  made  by 
liryant,  the  pi'rson  to  whom  defendant  married  the  said  minor, 
that  she  was  of  age,  and  his  reliance  thereon  does  not  shield 
him,  and  if  he  saw  lit  to  determine  for  himself  her  age,  by  her 
looUs,  he  did  so  at  his  p(!ril :  Donahue  v.  DoiKjIn'i'ty.,  5 
itawle,  lL'4. 

[f  even  the  evidence  ofP(!red  had  been  n'ceivablc  for  the  pur- 
p..sc  of  mitigating  the  punishment  (which  (picstion  is  not  neces- 
sary to  de'i'i'minei  its  reji'ction  wouM  not  have  lieeii  reversible 
error,  for  the  n-a-on  tliat  the  di'trii<l,ini  .-.i>i, lined  no  injury 
tberebv.  a>  the  judgment  of  tli*^  court  shows  that  he  was  otdy 
pubjected  to  the  lo^^<•^.|  punishment  whit^h  could  have  been 
inliicted  under  the  hu» , 

Jud:rnient  atlirmed,  with    he  concurrence  of  tlie  otlier  judges. 

A/fit'/ned. 


,63n 


AMERICAN  CRIMINAL  REPORTS. 


Note. — On  the  question  of  how  far  ii  bona  fide  and  reasonable  belief  that 
the  minor  is  of  lawful  iigo,  is  a  (Icfen^c  in  prosecutions  of  this  nature,  see 
lieg.  V.  Prince,  1  Am.  Cr.,  1;  lioaker  e.  People,  ante,  p.  79. 


[f#r 


m 


.,;;    ft  i. 


McPhekson  v.  Thk  Commonwealth. 

(28  Grail.,  9:31).) 
Makiuaob:      What  in  <i  ntgro. 

A  marriage  betwoen  a  white  man  ami  a  woman  wiio  is  less  than  one-fourth  of 
negro  blood,  however  small  this  lesser  quantity  may  be.  is  legal. 

A  woman  whose  father  was  white  and  who.se  niother'.s  fatliiT  was  wiiite.  jmd 
whose  great-grandmother  was  of  brown  comple.xion,  is  not  a  negro  in  the 
sense  of  the  statute. 

These  cases  were  separate  indictments,  the  one  a<:;ainst  Ilowena 
McPherson  for  living  in  illicit  intercourse  with  (leorge  Stewart. 
he  not  heinf?  her  husband,  and  the  other  asrainst  George  Stewart 
for  living  in  the  same  way  with  Rowena  McPherson,  she  not 
being  his  wife.  The  proofs  were  that  they  had  beeti  married, 
and  the  only  question  in  this  court  was,  whether  she  was  a  negro, 
and,  therefore,  the  marriage  illegal,  as  Stewart  was  a  white  man. 
On  that  question,  the  facts  proved  are  stated  by  Judge  Moncure, 
in  his  opinion.  Both  the  parties  were  found  guilty  and  a.ssessed 
•with  a  fine.  And  they,  thereupon,  applied  to  this  court  for  a 
■writ  of  error,  which  was  allowed. 

Geon/e  D.   WIkc,  for  the  appellants. 

The,  Attorney-General,  for  the  commonwealth. 

MoNCUTRK,  P.,  delivered  the  opinion  of  the  court  in  McPhir- 


aonn  cafte 


IV 


The  court,  without  deciding  any  of  the'  questions  prcscMteii  1 
the  iirst  and  second  l)ills  of  (jxceptions.  is  ol  opinion,  in  reganl 
to  the  (juestion  presented  by  the  tiiird  bill  of  exccprioiis.  tliiit 
the  hustings  court  of  the  city  of  Maticiiester  eriHMJ  in  overruling 
the  motion  oi  the  defeiulant  in  that  court.  tli<'  plaint  ill  in  error. 
to  set  aside  the  verdict,  because  the  same  was  coiitniry  to  flic 
law  and  the  evidence,  and  grant  a  new  trial. 

It  appears,  from  the  certiticatt^  of  the  facts  whittli  were  provcij 
upon  the  trial,  tliat  lioweiia  >rcPlierson,  with  whom  (icnrgc 
Stewart  is  alleged  to   have  intermarried,  is  not  a   negro,    iiiij. 


»le  belief  that 
is  nature,  see 


ono-foiirth  of 

c.iral. 

as  white,  Jind 

ii  negro  in  tlie 

rist  Roweiia 
ge  Stewart, 
ViXii  Stewart 
til,  she  not 
.'ti  inarried, 
v'iis  a  iieyro, 
white  tiiaii. 
:e  i\[(»ii('nre, 
iikI  as^^es.se(l 
court  for  a 


in  MrP/ur- 

I'cseiited  hy 
I.  in  ri'ii'iu'il 
'|»ti(iiis.  that 

I   itVlMTIlHli;; 

ill'  in  error, 
rary  to  the 

vere  proveil 
otii  (ienr^'c 
iieirro,    iiiil. 


Mcpherson  c.  commonwealth. 


637 


therefore,  the  suid  inarria<?e  is  not  on  tiiat  acconnt  illegal.  It 
appears  from  said  certificate,  among  other  things,  "that  her 
father  was  a  wliite  man  ;  that  her  mother  was  also  by  a  white 
man,  out  of  a  brown  skin  woman ;  tliat  Washington  Goode,  tlit 
half-uncle  of  the  said  Rowena  McPlierson,  testiriej  that  the  saic 
brown  skin  woman,  who  was  his  grandmother,  and  the  great 
grandmother  of  said  Rowena  MePherson,  told  him  that  she  was 
a  half-Indian,  and  that  his  mother,  her  daughter,  also  told  him 
the  same."  It  thus  appears  that  less  than  one-fourt!i  of  her 
blood  is  negro  blood.  If  it  be  but  one  drop  less,  she  is  not  a 
negro. 

Besides,  having  certainly  derived  at  least  three-fourths  of  her 
blood  from  the  white  race,  she  derived  a  portion  of  the  residue 
from  her  great-grandmother,  who  was  a  brown  skin  woman,  and, 
of  course,  not  a  full-i)looded  African,  or  negro,  whose  skin  is 
blaek  and  never  brown.  It  was  said  in  the  family  that  the  said 
brown  skin  wonum  was  a  half-Indiati — a  fact  which  is  confirmed 
by  the  color  of  her  skin.  If  any  part  of  the  said  residue  of  her 
blood,  however  small,  was  derived  from  any  other  source  than 
the  African  or  negro  race,  then  Rowena  McPherson  cannot  be  a 
negro. 

The  court  is,  therefore,  of  opinion  that  the  Judgment  of  the 
said  hu.stings  court  is  erroneous,  and  it  is  considered  that  the 
same  be  reversed  and  annulled,  that  the  verdict  of  the  jury  be 
set  aside,  and  that  the  cause  be  icmanded  to  the  said  hustings 
court  for  a  new  trial  to  be  had  therein,  in  conformity  with  the 
foregoing  opinion. 

Which  is  ordered  to  be  certified  to  the  said  hustings  court  of 
the  city  of  Manchester. 

Christian,  Staples  and  Burk,  JJ.,  concurred  in  the  opinion. 

In  Stewart^s  Case  the  opinion  and  judgment  was  the  same. 

Judgment  reversed. 

IfoTE. — The  ooui's  are  not  perfeetly  nijreed  as  to  what  amount  of  negro 
blood  will  constitute  ii  perHon  a  negro  within  the  nicimiiig  of  the  statutes  in 
which  that  term  is  used.  In  /'t'/yi/c  r.  Ih<in,  U  Mieli.,  40U,  where  the  (;ase 
involved  was,  whether  the  defendant  was  enlilled  to  vole,  the  coniLtitulion 
limiting  tlu'  right  of  sutfra?!!' to  "  while  ni  de  eilizeiis,"  the  niajorily  of  liin 
court  held  only  those  are  white  who  have  less  than  onc-foiiith  of  neirro blood  in 
the'r  veins.  The  same  rule  exists  hy  slalule  in  Mis-issippi-  Ifiirnv.  Bii'/'iii't, 
87  MiBS.,  aOW.     In  Jo/umoh  o.  Norwich.  211  CJonn. ,  407,  a  statute  exempting  liom 


Ii':'  m 


h 


i  ' 


4it 


fj       ll 


>'  fgi 


m 


AMERICAN  CRIMINAL  REPORTS. 


taxation  the  personal  and  real  estate  of  "persons  of  color,"  was  held  to 
include  a  person  havini?  one-fourth  of  iic/^ro  Itlood.  In  liailey  o.  Mxhr,  34 
Mf.,  77,  a  woman  liavinir  one-sixteenth  of  Indian  l)lo()d  in  Iier  veins,  wiis  held 
to  be  a  wlute  woman,  and  Iht  marriai^e  willi  a  inulitto  to  be  void  under  tlie 
statute.  But  in  North  Carolina  "person  of  color"  is  held  to  mean  n  i)orson 
descended  from  a  negro,  within  the  fourth  degree  nclusiv(\  so  tlmt  in  S/n'rv. 
Dempwi/,  9  Ired.,  384,  the  defendant,  liaving  only  one-sixteenth  of  negro  Ijlood, 
was  held  to  be  a  person  of  color,  but  if  he  had  had  any  leas,  he  would  have 
been  considered  white. 


U«  » 


,  It  » 


"f^-r 


State  v.  Doepke. 

(68  Mo.,  208.) 

Larceny:    (henership  of  coffin,  used  for  burial —  Criterion  of  talue  in  Inreeny. 

It  is  larceny,  at  common  law,  to  steal  a  coffin  in  which  a  body  is  interred,  and 
Missouri  statutes,  punishin;^  disinterring  and  receiving  the  dead  >)ody, 
and  opening  tlie  grave  for  the  purpose  of  talting  up  the  body  or  stealing 
the  coflln,  or  anything  buried  with  the  deceased,  in  no  wise  al)rogate8  or. 
alTects  tlie  common  law  rule. 

In  such  a  <ase  it  is  proper  for  the  indictment  to  allege  the  collln  to  be  the 
property  of  tlie  one  wiio  furnislied  it  for  tlic  burial. 

Where  the  value  of  tlie  article  stolen  is  material  in  a  prosecution  for  larceny, 
its  value  is  to  be  fixed  by  its  market  price,  and  not  i)y  wliat  it  is  wortli  to 
its  owner,  or  for  tli(^  particular  purpose  for  which  it  is  u.sed.  It  is  to  i)e 
regarded  as  worth  just  what  it  would  fetch  in  the  open  mariict. 

Henhv,  J.  It  is  conceded  by  couiisel  for  appellant,  and  fully 
establirihed  by  the  authorities,  that  a  coffin  in  which  the  reinaiiLs 
of  a  human  being  were  interred,  was  a  subject  of  larceny  at  com- 
mon law.  It  is  contended,  however,  that  sections  11,  12,  Di 
and  14,  of  our  act  concerning  crimes  and  piinisiuneiits  (Wiig. 
Statutes,  pages  500,  501),  "stand  in  lieu  of  the  common  law  as 
it  existed  in  relereiice  to  the  question  under  consideration,  and 
that  the  acts  alleged  to  have  been  committed  by  the  defendant  in 
this  case,  amounted  to  nothing  more  than  ii  statutory  nn'sde- 
meanor."  Section  eleven  provides  a  ])unishment  for  removing 
the  remains  of  a  human  being  from  the  grave  or  other  place  of 
int(Tment.  Section  twelve  makes  it  a  misdeineaiior  for  tiny  one 
to  receive  such  remains,  knowing  them  to  have  been  disinterred 
contrary  to  the  provisions  of  the  preceding  section.  These  sec- 
tions, it  might  be  contended  with  plausibility,  have  superseded 
the  common  law  in  regard  to  the  e.xhumation  of  the  remains,  but 


'  was  held  to 

'ey  V.  Fishr,  34 
■('ins,  was  held 
'oid  iindcir  the 
nenn  a  |)orson 
I  hilt  in  S/a>t'v. 
f  noirro  blood, 
10  would  have 


hie  in  Idreeny. 

» interred,  and 
le  dead  hody, 
dy  or  stealing 
e  abrogates  or. 

llln  to  be  the 

n  for  hirccuy, 
it  is  wortli  to 

I.  It  is  to  i)fl 
ket. 

t,  and  fully 
:lio  remains 
my  at  coiu- 

II,  12.   13 

cuts  (Wii^'. 
lion  law  as 
'ration,  and 
L'fendant  in 
-ory  niisde- 
'  rcnioviiijf 
3r  place  of 
"or  ajiy  one 
disinterred 
These  sec- 
superseded 
jtnains,  Imt 


STATK  V.  n()i:PKR. 


r.39 


havp  no  beanng  upon  the  question  of  stealinf?  a  coHin  or  i^rave 
clothes. 

It  was  not  larceny,  at  conunon  law,  to  take  a  dead  l.ody  from 
its  place  of  interment,  under  any  eircnnistanecs,  l.iit  it  was  a 
misdemeanor,  and  as  sections  (jleven  and  twelve  expressly  pro- 
vide a  punishment  for  that  olTense,  as  also  IV»r  receivinc;  the 
dead  body,  those  sections  may  he  taken  to  stand  in  lien  of  the 
common  law  in  relation  to  the  removal  of  tlu;  remains  of  the 
dead. 

Section  thirteen  provides  that  "every  person  who  shall  open 
the  grave  or  other  place  of  interment,  or  sepulture,  with  intent 
to  remove  the  dead  body  or  remains  of  any  human  heing,  for 
any  of  the  purposes  specitie«l  in  se(!tion  elev(!ii  of  this  chapter. 
or  to  steal  the  cofRii  or  any  vestment  or  other  article,  or  atiy  part 
thereof,  interred  with  such  body,  shall,  on  conviction,"  etc. 

This  section  jirovides  a  punishment  for  ati  attempt  to  remove 
the  remains  or  to  steal  the  coffin  or  any  arti(de  internal  with  the 
body.  There  is  no  enactment  in  regard  to  stealing  a  (ioflin,  and 
with  what  jjropriety  can  it  be  said  that  tlu;  legislature!,  having 
prescrihed  a  punishment  for  one  offense  which  was  |)unishal)lo 
at  comnxm  law,  has  thereby  repealed  the  coirimon  law  in  regard 
to  adilTerent  and  higher  grade  of  (ttfense?  IJy  tin*  ('omnion  law 
it  was  larceny  to  steal  a  coffin  in  whi(!h  the  remains  of  ii  human 
being  were  interred.  It  was,  at  common  law,  also  a  misd(!- 
meanor  to  attempt  to  commit  that  olTense,  and  tlu;  argunK^nt 
urged  here  is,  that  inasmuch  as  our  legislature  has  provided  a 
punishment  for  the  misdemeanor,  it  has  thereby  entirely  suptsr- 
eeded  and  abolished  the  common  law  as  Jo  the  felony.  We  may 
not  appreciate  the  force  of  the  argument,  hut  it  comes  far  short 
of  securing  our  assent  to  the  propositi(»n.  That  the  stealing  of  a 
coffin  is  still  larceny  in  this  state  is  rctcognizc^d  iti  section  thir- 
teen, wherein  it  provides  a  punishment  for  the  attempt  to  steal  a 
coffin.  We,  tlutnsfore,  conclude  that,  notwithstanding  tiu;  enact- 
ment of  those  sections,  a  coffin  in  which  tlui  remains  of  a  human 
being  are  interred  is  still  a  subject  of  lanu-ny  iti  this  state. 

It  is  insisted  that  the  indi(;tment  is  defective  in  failing  to 
n(!gative  the  exceptions  contaiiunl  in  section  fourteen.  This 
question  has  been  otherwise  determined  by  repcfatiid  dtuiisions  of 
this  court,  and  recently  in  the  Slate  v.  O'Gonrum,  ante,  p.  179. 

The  coffin  was  alleged,  in  the  indictment,  to  ho  the  property 
of  one  Makel,  a  son-in-law  of  the  accused,  and  it  is  contended 


U^i 


. '    I' 
i        - 


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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Sciences 

Corporalion 


23  WUT  MAIN  STRUT 

WIUTIR,N.Y.  MSSO 

(716)t72-4S03 


'^^A,  ^ 
^g^^**^ 

V 


6^ 


640 


AMERICAN  CRIMINAL  REPORTS. 


m 


¥0' 


H  I . 


1 1 


that  when  he  had  the  body  interred  he  parted  with  all  the  prop- 
erty he  had  in  the  colhu,  and  that,  therefore,  tlie  conviction  of 
defendant  cannot  he  8iie>tained.  Roscuu,  in  his  work  on  criminal 
evidence,  says :  ''  A  shroud  stolen  from  the  corpse  must 
be  laid  to  l)u  the  property  of  the  executor,  or  of  whoever 
else  buried  tlie  deceased:"  Page  W-i  {(kh  Am.  ed.);  1 
Chirty  Ciiin.  Law  (otli  Am.  ed.),  44;  1  Hawkins  P.  C,  144, 
14!S ;  Sliarswood  Black.,  4th  vol.,  2;).'>.  All  these  autborities,  it 
is  true,  spciik  only  of  shrouds  and  ornaments  buried  with  the 
dead,  but  the  principle  upon  wnich  these  may  be  alleged  to  be 
the  property  of  the  execMitor,  or  of  the  person  who  buried  the 
deceased,  will  certainly  sustain  an  allegation  that  the  coffin  is  the 
property  oi"  th'i  j)ersoii  who  buried  the  deceased. 

Tiiu  (rourt,  for  the  state,  instructed  the  jiiry  that  if  they  found 
that  the  cottiu  was  of  less  value  than  ten  dollars,  aiul  that  defend- 
ant stole  it,  tliev  should  eoiivict  liim  of  petit  larceny.  By  another 
instruction  they  were  tolil  that  in  order  to  convict  defendant  of 
grand  larceny  ihey  should  tind  the  coffin  to  have  been  of  the 
value  of  ten  dollars  or  more,  and  that  it  WJis  sufficient  if  they 
found  it  to  have  been  of  that  value  to  the  owner,  and  that  it  was 
not  required  that  it  should  be  of  that  value  to  third  pi;rsons,  or 
that  it  would  command  that  price  in  the  open  market.  This  lat- 
ter instruction  was  erroneous.  The  authorities  citea  to  support 
the  doctrine  it  annt)uncod  give  it  no  countenance. 

In  3  Greenleafs  Evidence,  page  140,  section  153,  the  author 
Miys :  "  Nor  is  it  necessary  to  prove  the  value  of  the  goods 
stolen,  except  in  prosecuting  under  statutes  which  made  tlie 
value  material  either  iq  constituting  the  offense  or  in  awarding 
the  panishinent. 

"  IJnt  the  goods  must  be  shown  to  be  of  some  value  at  least  to 
the  owner,  such  as  reissuable  bankers'  notes,  or  other  notes  com- 
pletely executed  but  not  delivered  or  put  into  circulation,  though 
to  third  persons  they  might  b.>  worthless."  It  is  clear  that  in 
the  latter  clause  he  was  s|)eaking  of  other  prosecutions  than 
those  under  statutes  which  make  the  value  material,  either  in 
constituting  the  offense  or  awarding  the  punishment. 

"  By  the  Knglish  law,  as  it  stood  when  this  country  was  set- 
tled, larceny  was  divided  into  grand  and  petit;  the  I'ormcr  being 
committed  where  the  goods  stolen  were  over  twelve  pencf;  in 
value,  the  latt«;r  where  they  were  of  the  value  of  twelve  peuce 
or  under : "     Bishop's  Crim.  Law,  vol.  i,  sec.  079. 


mm 


STATE  D.  DOEPKB. 


641 


"  III  tliose  valuations  (says  East)  the  valuation  ought  to  be  rea- 
flonable ;  for  wlien  the  statute  (of  West.  I.,  c.  15)  was  made,  sil- 
ver was  but  20d.  an  ounce,  and  at  the  time  Lord  Coke  wrote,  it 
was  worth  5s.,  and  it  is  now  higher :  2d  East's  P.  C,  736.  So 
Lord  Coke,  2  Inst.,  180,  says:  "The  things  stolen  are  to  be 
reasonably  vahu'd,  for  the  ounce  of  silver,  at  the  making  of  this 
act,  was  at  the  value  of  20d.,  and  now  it  is  at  the  value  of  58. 
and  above."  See,  also,  Jilack.  Com.,  vol.  4,  237.  The  statute  of 
Westminster  I,  chapter  15,  referred  to  by  these  authors,  was 
that  by  which  the  distinction  betwixt  grand  and  petit  larceny 
was  made. 

By  statutes  seven  and  eight,  George  IV.,  chapter  29,  section  2, 
that  distinction  was  abolished,  and  every  larceny,  without  regard 
to  the  value  of  the  goods,  was  made  grand  larceny :  Sharswood's 
T  ack.,  vol.  4,  230.  When  it  is  said  by  elementary  writers,  and 
in  adjudged  cases,  that  in  order  to  constitute  the  offeJise  of  lar- 
ceny it  is  sufficient  if  the  thing  stolen  be  of  some  value  to  the 
owner,  however  small,  although  to  third  persons  worthless,  the 
observations  relate  to  the  offense  of  petit  larceny,  or  to  simple 
larceny,  under  the  statute  seven  and  eight,  George  IV.,  and 
similar  statutes,  and  are  wholly  ina))plicable  to  grand  larceny. 
Where  a  distinction  is  made  by  statute  between  that  and  petit 
larceny,  based  upon  the  value  of  the  goods  stolen,  the  remarks 
of  East  and  Lord  Coke,  above  quoted,  show  conclusively  that  the 
value  of  the  goods  was  to  be  measured  by  the  curi'ent  coin  of  the 
realm,  and  that  the  cash  value  was  that  to  be  ascertained  in 
determining  whether  the  theft  was  grand  or  petit  larcejiy. 

If  the  criterion  of  the  value,  given  by  the  court  in  the  second 
of  the  above  instructions  be  correct,  one  might  be  convicted  of 
grand  larceny  for  stealing  a  linger  ring  of  the  intrinsic  or  market 
value  of  five  dollars,  only  because,  forsooth,  being  a  gift  to  the 
owner  by  a  departed  friend,  or  wife  or  other  loved  one,  he 
placed  an  estinuite  upon  it  far  beyond  its  value,  although  of  no 
greater  value  to  third  persons  than  another  ring  of  the  sanu^kind 
whicli  could  be  purchased  wherever  kept  for  sale  for  five  dollars. 
The  criterion  of  value  by  which  the  jury  were  told  in  that 
instruction  they  might  be  governed,  does  not  apply,  as  a  general 
rule,  in  civil  proceedings,  and  when  the  statute  requires  that 
property  stolen  shall  be  of  the  value  of  ten  dollars,  in  order  to 
constitute  the  theft  thereof  grand  larceny,  the  term  "value"  is 
to  be  taken  in  its  legal  sense,  which  does  not  differ  from  its  com- 
VoL.  II. -41 


G42 


AMERICAN  CRIMINAL  REPORTS. 


Bi 

mM 

HI 

fe 

Hi 

m 

m 

14 

^^;  ,^ 

■  '\ 

mon  acceptation,  and  there  is  no  warrant  for  allowing  any  other 
mode  of  ascertaining  the  value  of  stolen  property  in  a  criminal 
prosecution  than  that  which  prevails  generally  in  civil  proceed- 
ings. It  is  not  the  fancy  estimate  of  value  placed  upon  the 
property  by  the  owner  which  is  to  determine  whether  the  theft 
is  grand  or  petit  larceny,  but  its  actual  value,  as  that  value  is 
usually  ascertained  in  other  proceedings. 

If  one  sue  another  for  conversion  of  personal  property,  ho 
recovers,  not  what  the  property  was  worth  to  him,  but  its  value 
in  the  market ;  and  it  would  be  strange  enough  if,  when  the 
statute  declares  that  no  one  shall  be  adjudged  guilty  of  grand 
larceny,  unless  the  goods  stolen  were  of  the  value  of  ten  dollars, 
a  criterion  of  value  should  be  adopted  which  would  authorize  a 
conviction  for  that  offense,  when  the  goods  stolen  are  worthless 
to  third  persons,  and  of  no  market  value,  but  possess  a  value  which 
can  only  be  measured  by  fancy  or  sentiment — a  measure  of  value 
as  uncertain  and  variable  as  the  whims  and  caprices  of  the  owner 
of  the  goods,  or  the  witnesses  he  may  introduce  to  prove  their 
value. 

We  cannot  substitute  this  for  the  stable  and  certain  measure 
furnished  by  the  price  which  such  goods  command  in  the 
market. 

In  some  civil  cases,  we  are  aware,  the  jury  are  allowed  to  con- 
Bidor  pretium  affectionts,m  estimating  the  value  of  property, 
but  the  reason  for  the  departure  from  the  geiiorul  rult!  in  those 
cases  docs  not  apply  in  a  prosecution  for  stealing  such  i)ropeity. 
The  purpose  of  the  prosecution  is  to  punish  the  thief,  not  to 
compensjite  the  owner  of  the  property  for  his  loss. 

The  judgment  of  the  court  of  appeals  is  reversed,  and  cause 
remanded. 

All  concur.  Reversed. 


^ppf^ 


REQINA  V.  HOLBROOK. 


643 


EeOINA   V,    HoLBROOK. 

(13  Cox  Cr,  650.) 

Libel:    Criminal  liabtiity  of  jnihluiher  for  act  of  servant. 

Upon  a  criminal  information  for  libel,  it  was  proved  that  the  three  defend- 
ants, the  proprietors  of  the  newspaper  in  which  the  libel  appeared,  tooic 
an  active  part  in  the  management  of  the  paper,  but  had  given  a  general 
authority  to  a  competent  editor  to  publish  whatever  he  thought  jiroper  in 
the  literary  part  of  it.  At  the  trial,  evidence  was  tendered  by  the  defend- 
ants to  prove  that  the  libel  was  published  without  their  authority,  consent 
or  knowledge,  aud  without  want  of  due  cai-e  or  caution  on  their  part, 
within  the  meaning  of  6  fad  7  Vict. ,  chap.  96,  sec.  7.  The  judge  refused  to 
bear  this  evidence,  and  directed  the  jury  that  the  section  did  not  apply. 
Upon  a  rule  for  misdirection,  /Wd.  by  Cockburn,  C.  J.,  and  Lush,  J. 
(dissentiente  Mellor,  J. ),  that,  notwithstanding  the  authority  to  the  editor, 
it  was  a  question  for  the  jury  whether  the  protection  given  by  this  section 
applied  to  the  defendants,  and  that  there  must  be  a  new  trial. 

This  was  a  criminal  information  for  libel,  tried  at  Winchester, 
before  Lindley,  J.,  and  a  special  jury,  a  verdict  of  guilty  having 
been  f<>uiid  ajjfalnst  the  defendants,  who  are  the  proprietors  and 
puhlishers  of  tlie  Portsmouth  Times  and  Naval  Gazette. 

The  information  had  been  granted  at  the  instance  of  Mr.  John 
Howard,  tlio  dork  of  tlie  peace  for  the  borough  of  Port.snioiith, 
who,  in  I'lfect,  had  been  cliarged,  by  an  article  in  that  ne\v.s])aper, 
with  having  packed  a  grand  jury  at  the  borougli  quarter  eessiotia, 
for  the  purpose  of  improperly  dealing  witli  an  indictment  for 
personation  at  a  nnmicipal  ek'ction. 

The  dcfoiKhmts,  who  pleaded  not  guilty  only,  were  proved  to 
be  the  pultlisiiers  of  the  paper,  and  to  be  actively  engaged  in  the 
management. 

It  apjteared,  however,  that  they  employed  a  competent  editor 
to  superintend  that  part  of  the  paper  in  which  the  libel  appeared, 
and  he  had  general  authority  to  publish  whatever  he  thought 
proper.  The  defendants  then  tendered  evidence  to  show  their 
exemption  from  liability  under  the  seventh  section  of  Lord 
Campbell's  act  (6  and  7  Vict.,  c.  96). 

This  evidence  the  learned  judge  refused  to  admit,  and  he 
directed  the  jury  that  the  defendants  were  not  in  a  position  to 
avail  themselves  of  that  section. 

The  words  of  tlie  seventh  section  of  6  and  7  Vict.,  c.  96,  are : 


644 


AMERICAN  CRIMINAL  REPORTS. 


1^ 


i 


'<":'  , 


< '  f    s 


^^ 


"  Tl»at  whensoever,  upon  the  trial  of  any  indictment  or  infonn- 
ation  for  t!i§  publication  of  a  libel,  under  the  plea  of  not  guilty, 
evidence  shall  liave  been  given  whicii  shall  establish  a  presump- 
tive case  of  jmblication  against  the  defendant,  by  the  act  of  any 
other  person  by  his  authority,  it  shall  be  competent  to  such 
defendant  to  prove  that  such  publication  was  made  without  hii, 
authority,  consent  or  knowledge,  and  that  tlie  said  publication 
did  not  arise  from  want  of  due  care  or  caution  on  his  part." 

(^)n  the  3d  November,  Cole,  Q.  C,  obtained  a  rule  nisi  for  a 
new  trial  on  behalf  of  the  defendants,  on  the  ground  of  mis- 
direction in  the  judge's  statement  that  the  defendants  were  crim- 
inally responsible  for  the  publication  of  the  libel,  although  they 
had  appointed  a  competent  editor  to  conduct  the  newspaper,  and 
that  the  publication  was  made  without  their  actual  authority, 
couficnt  or  knowledge,  and  did  not  arise  from  want  of  due  care 
or  caution  on  their  part. 

Charles,  Q.  C,  and  A.  L.  Smith,  now  showed  cause  for  the 
prosecution. 

Here  the  evidence  established  an  actual  publication  under  the 
general  authority  given  to  the  editor  by  the  defendants,  and, 
therefore,  this  was  not  the  mischief  aimed  at  by  the  remedy 
given  in  this  section. 

It  was  held  by  the  exchequer  chamber  in  Pm'hes  v.  Prescott 
(L.  Rep.,  4  Ex.,  169),  that  the  criminal  liability  for  a  libel  pub- 
lished by  authority,  was  m-  e  extensive  even  than  the  civil 
liabilit}'.  No  doubt,  as  far  bi.  k  as  1770,  we  find  it  stated  that 
prima  facie  evidence  of  publication,  such  as  public  ex])osuro  for 
sale  and  selling  at  the  defendant's  shop, might  be  rebutted  by 
evidence  in  exculjiation :  Rex  v.  Almon,  5  liurr.,  2t)8() ;  but 
there  is  !io  8ubse([uent  case  in  which  that  dictum  has  been  acted 
upon.  From  that  time  the  law  and  practice  concerning  libel  seems 
to  have  becume  more  stringent  against  publishers,  except  so  far  as 
Fox's  libel  act  (32  Geo.  III.,  c.  60)  relieved  them  by  empowering 
the  jury  to  give  a  general  verdict  upon  the  whole  matter  in  issue, 
and  abolished  the  previous  limitation  of  their  right  to  consider 
the  pui)li('ation  oidy,  which  was  the  law  as  laid  down  in  li'>',r,  ». 
The  />f'ini  of  St.  Afxipli,  reported  in  a  note  to  AV./)  v,  Wilfen 
(3  T.  Kep..  '42S).  In  181l>  {lice  v.  MV/Mv-,  3  Esp.,  21),  Lord 
Kenyon  said,  at  ni,n  privM ;  "Jfe  was  clearly  of  opinion,  that 
the  proprietor  of  a  newspajjcr  was  answerable,  criminally  as  well 
as  civilly,  for  the  acts  of  his  servants,  or  agents,  for  misconduct 


^i«ip 


REGINA  t>.  HOLBROOK. 


645 


in  the  conducting  of  a  newspaper.     That  was  not  his  opinion 
only,  but  that  of  Lord  [lull,  Powell,  J.,  and  Foster,  J.,  all  high 
law  authorities,  and  to  which  lie  subscribed.     This  was  the  old 
and  received  law  for  above  a  century,  and  was  not  to  be  broken 
in  upon  by  any  new  docti-ine  ui>on  libel."     This  ruling  waa  fol- 
lowed by  Lord  Tenterden,  a'  nisi  p^-ius,  in  Jieac  v.  Gutek  (Moo. 
and  Mack.,  433),  who,  in  sinnming  up  the  second  trial  of  the 
eame  defendant,  said  (p.  438) :     "  I  tell  you  to-day,  as  1  thought 
myself  bound  to  tell  the  jury  yesterday,  that  the  proprietor  of  a 
newspaper  is  criminally  answerable  for  what  appears  in  it;  I 
do  not  mean  to  say,  nor  ever  did  mean  to  say,  that  sotne  possible 
case  may  not  occur  in  which  he  would  be  exempt,  but  generally 
speaking,   he   is   answerable."     So   in   Hawkins'   Pleas  of   the 
Crown,  Bk.  1,  ch.  28,  sec.  10,  we  find,  "  And  it  is  said  not  to  be 
material  whether  he  who  disperses  a  libel  knew  anything  of  the 
contents  or  effect  of  it,  or  not."     There  are  also  dicta  of  Lord 
Lyndhurst,  C.  B.,  and  Alderson,  B.,  in  Colburn  v.  Patmors 
(1  Cr.  M.  and  "W.,  73),  which  adopt  this  view  of  the  law.     The 
former  aaid  (p.  77)  :    "  There  is  this  dictinction  between  the  case 
of  libel  and   that  of   other  acts  committed  by   servants,  that 
whether  the  libel  be  published  negligently  or  willfully,  the  mas- 
ter is  responsible,  but  in  other  cases,  he  is  answerable  only  where 
the  act  is  negligent."     Alderson,  B.,  added  :    "  A  master  is  pre- 
sumed to  authorize  the  insertion  of  a  libel ;  in  ofhor  cases,  the 
master  is  not  presumed  to  authorize  the  willful  act  oi'  liis  servant 
in  committing  a  tort.     Does  not  the  proprietor  of  a  newspaper 
give  authority  to  the  editor  to  publish  everything,  lilK'lf)us  or 
not?     Does  not  such  a  general  authority  cover  the  publication 
of  a  libel?"     In  the  case  above  mentioned  {Rex  v.  GiUch)  the 
defendants  were  proved  to  be  proprietors  of  the  newsjiaper  in 
what  is  said  to  have  been  then  the  usual  manner,  by  their  affida- 
vit filed  at  the  stamp  office,  and  no  evidence  on  the  point  was 
offered.     Similar  evidence,  by  declaration  and  certified  copy,  was 
made  conclusive  against  the  publisher  by  6  and  7  William  IV., 
chapter  seventy-six,  section  seven  ;  and  although  that  section  was 
repealed  by  32  and  33  Victoria,  chapter  twenty-four,  section  one, 
it  was  the  law  at  the  time  Lord  Campbell's  act  (6  and  7  Vict.,  c. 
96)  was  passed,  and  that  evidence  unist  have  been  intended  by 
the  description  of  "  evidence  which  shall  establish  a  presumptive 
case  of   publication  against  the  defendant,"   contained  in  the 
seventh  section. 


646 


AMERICAN  CRIMINAL  REPORTS. 


r 

■  'I 

>  \ 


•  1  %  ^.   ' 


I   t 


V    I 


To  meet  this  presumption  created  by  the  regiBtration,  that 
section  provides  a  protection  for  a  publisher  if  he  can  prove 
that  the  libel  was  published  without  his  authority,  consent  or 
knowledge,  and  without  want  of  due  care  or  caution,  as  by  the 
insertion  of  a  libel  by  an  unauthorized  person.  It  was  not,  how- 
ever intended  in  any  way  to  apply  to  a  case  like  the  present, 
where  the  publisher's  general  authority  to  the  editor  is  proved, 
nor  where  the  jjublishor  is  the  manager  of  his  own  paper,  and  no 
libel  can  ajipear  in  it  if  due  care  and  caution  be  exercised.  This 
is  implied  by  the  note  to  this  section  contained  in  Chitty's  Stat- 
utes, volume  2  (3d  edit.,  1865),  page  12.54.  That  a  general 
authority  of  this  kind  should  render  the  defendants  liable  here 
is  su])p()rted  by  the  decision  to  that  effect  with  respect  to  a 
fraudulent  niisrepi'esentation  in  Barwick  v.  English  Joint  Stock 
Banks  (L.  Eep.,  2  Ex.,  259).  [Lush,  J.  That  is  with  respect 
to  civil  liability.]  It  was  similarly  held,  upon  an  indictment  for 
a  nuisance,  in  Begf.  v.  Strphe?is  (L.  Rep.,  1  Q.  B.,  702). 

Cole,  Q.  C,  and  Folkard,  supported  the  rule.  The  last  case 
cited  (AVj/.  v.  Stephens)  was  expressly  deterinuied  on  the  ground 
that  there  was  no  other  remedy  but  an  indictment,  and  that  it 
was  in  the  nature  of  a  civil  proceeding. 

In  all  cases  of  criminal  liability,  except  libel,  the  rule  is,  find 
has  always  been  admitted,  that  a  person  caimot  be  responsible, 
without  knowledge  and  consent,  for  the  illegal  act  of  his  servant 
or  agent. 

Even  at  the  tinie  of  Rex  v.  Ahnon,  in  the  year  1770,  it  was 
possible  to  rebut  the  exception  to  this  rule  with  respect  to  libel. 
The  presumption  against  the  publisher,  although  strengthened 
by  the  course  of  practice  before  Lord  Campbell's  act,  was  always 
regarded  as  an  anomaly ;  and  it  was  to  put  an  end  to  this  anom- 
aly, and  not  merely  for  the  purpose  of  abolishing  a  particular 
mode  of  proof,  that  the  seventh  section  was  enacted.  This  is  a 
case  to  which  that  section  is  exactly  applicable,  and  tlie  defend- 
ants ought  to  have  been  allowed  to  advance  the  evidence  which 
they  tendered  at  the  trial. 

CocKiuTKN,  C.  J.  I  am  of  opinion  that  this  rule  must  be  made 
absolute. 

The  facts,  as  I  understand  them,  show  that  the  defendants  are 
the  three  joint  proprietors  of  this  newspaper ;  but  it  appears  that, 
when  not  absent  from  Portsmouth,  the  duties  of  conducting  the 


mm 


REGINA  t.  HOLBROOK 


647 


uist  bo  made 


paper  are  divided  between  four  persons,  viz.,  the  three  defend- 
ants and  an  editor  appoiuted  by  them  to  manage  the  literary 
department. 

The  defendants  undertake  respectively  the  commercial,  the 
advertising,  and  the  publishing  duties. 

At  the  time  of  the  publication  of  this  libel,  one  of  the  defend- 
ants was  absent  in  Somerset,  on  account  of  his  health,  and  he, 
clearly,  was  not  cognizant  of  the  publication. 

The  others  were  present  and  discharging  their  ordinary  duties ; 
but,  as  the  editor  had  full  discretion  to  publish  whatever  he 
thought  proper  in  that  department  which  issued  the  libelous 
publication,  without  consulting  them,  all  the  defendants  must  be 
taken,  for  the  purpose  of  this  rule,  to  have  known  nothing  of 
the  insertion  of  the  article  complained  of.  The  question  is, 
whether  the  defendants,  or  either  of  them,  are  criminally 
responsible. 

It  is  an  undoubted  principle  of  law,  that  a  man  is  responsible,  . 
criminally,  only  for  his  own  acts,  or  those  authorized  expressly 
by  him  through  his  appointed  agent.  It  is  not  to  be  implied  or 
inferred,  from  the  fact  that  the  defendants  gave  their  editor  a 
general  authority  to  manage  the  paper  as  he  thought  proper, 
that  they  authorized  hiin  to  do  what  was  unlawful  in  the  con- 
duct of  his  ordinary  business.  Although  this  is  the  rule  of  law, 
there  seems  to  have  been  introduced  an  exception  with  respect  to 
libel.  Lord  Tenterden,  at  Nisi  PAus^  in  1829,  following  a  pre- 
vious direction  of  Lord  Kenyan,  and  a  statement  of  the  law  in 
Hawkins'  Pleas  of  the  Crown,  laid  down  that  a  proprietor  of  a 
newspaper  was  criminally  responsible  for  a  libel,  although  he 
took  no  part  in  the  publication  of  the  newspaper,  nor  of  the 
libel  in  question.  He  further  proceeded  to  justify  this  ruling, 
and  expatiated  upon  the  danger  to  the  public  which  its  modifica- 
tion might  cause.  It  is  not  necessary  to  say  how  far  we  dissent 
from  that  doctrine;  it  was  considered  an  anomaly  by  high 
authority  at  the  time,  and  I  cannot  doubt  that  the  seventh  sec- 
tion of  Lord  Campbell's  act  was  passed  to  put  an  end  to  it. 

It  has  been  suggested  that  the  object  of  this  legislation  was 
only  to  get  rid  of  the  presumption  from  particular  evidence 
created  by  previous  statute,  or  to  apply  to  a  case  where  the  libel 
has  been  inserted  by  some  one  who  had  no  authority  to  interfere 
at  all  with  the  publication.  The  answer  to  both  these  sugges- 
tions is,  that  the  section  was  unnecessary  for  the  accomplishment 


^1 


m 


AMERICAN  CRIMINAL  REPORTS. 


rf 


of  either  of  these  objects ;  and  I  can  come  to  no  other  conclusion 
than  that  it  was  intended  by  these  words  to  reverse  this  anomaly, 
and  to  render  libel  subject  to  the  general  law.  If,  then,  as  I 
think,  this  provision  was  designed  to  protect  the  proprietor  of  a 
newspaper  from  criminal  responsibility  for  the  act  of  another 
person,  committed  through  no  fault  of  his  and  without  his 
authority,  does  not  the  case  here  come  within  its  application  ? 

As  to  the  defendant  who  was  absent,  he  clearly  is  protected, 
unless  the  prosecution  can  show  that  his  general  authority  to  the 
editor  expressly  included  power  to  publish  libels.  As  to  the 
other  two  defendants,  the  section  provides  protection  from  lia- 
bility for  a  publication  made  without  a  publisher's  authority, 
consent  or  knowledge,  if  he  has  exercised  due  care  and  caution ; 
it  would  then  be  a  question  for  the  jury,  looking  at  all  the  cir- 
cumstances, whether  those  defendants  can  show  themselves  enti- 
tled to  that  protection. 

If  the  jury  should  be  in  the  defendants'  favor  on  these  points, 
they  can  neither  of  them  be  criminally  liable.  I  sjiy  nothing 
about  th(ur  position  civilly,  but  it  seems  to  me  that  the  section 
can  have  no  application  at  all  if  it  does  not  apply  to  this  case. 
It  is  not  for  tis  to  say  whether  it  is  expedient  or  dt'sirable  that 
proprietors  of  newspapers  should  be  freed  from  liability,  under 
such  circumstances,  and  I  do  not  consider  that  question. 

Simply,  this  section  is,  in  my  opinion,  applicable  to  the  facts 
upon  wluch  this  rule  has  been  granted.  I  think  it  must  be  made 
absolute,  and  the  case  must  go  bade  for  a  new  trial. 


Mellor,  J.  I  regret  much  that  I  am  unable  to  concur  with 
the  lord  chief  justice  and  my  brother  Lush  in  their  view  of  this 
matter.  I  dissent  with  the  greatest  diffidence,  but  I  cannot  think 
that  the  legislature  intended  to  apply  section  seven  of  this  act 
to  pereons  situated  as  these  defendants  are.  They  do  not,  in  the 
ordinary  way,  live  at  any  distance  from  the  publishing  office, 
they  do  not  keep  away  from  the  general  management  of  the 
paper,  and  the  whole  business  is  conducted  for  their  profit  and 
by  their  authority.  The  editor  might,  by  inadvertence,  have 
published  this  libel,  but  the  want  of  care  would  then  deprive  the 
publication  of  the  protection  given  in  the  act.  I  think,  too,  that 
the  absent  partner  is  in  the  same  position  as  the  other  two ;  they 
all  gave  their  editor  a  general  authority  to  do  what  he  liked ; 
they  vested  their  discretion  in  him,  they  put  themselves  in  his 


^w;^ 


REGINA  V.  HOLBROOK. 


649 


hands,  and  they  must  be  taken  to  have  authorized  whatever  he 
lus  done.  The  seveiitli  section  requires  not  only  the  absence  of 
authority,  consent  and  knowledge,  but  also  the  presence  of  care 
and  caution.  I  quite  agree  that,  upon  the  evidence  adduced  at 
the  trial,  this  lil)el  must  be  taken  to  have  been  published  w^ithout 
the  knowledge  of  the  defendants ;  but,  to  be  exempt  from  liabil- 
ity, they  must  further  prove  that  it  was  beyond  the  authority 
they  had  given  to  their  editor,  and  that  they  were  duly  careful 
and  cautious  in  respect  of  its  publication. 

If  my  brother  Lindley  took  the  view  that  the  statute  did  not 
apply  because  the  defendants  could  not  show  all  or  some  of  these 
conditions  of  exemption,  he  seems  to  me  to  have  been  right  in 
his  Slimming  up  and  refusal  to  hear  the  evidence  tendered. 

Proprietors  who  take  part  in  the  management  of  their  paper, 
but  commit  themselves  to  the  discretion  of  an  editor  who  is 
careless,  cannot  escape  responsibility ;  but  if  the  failure  in  care 
is  not  due  to  the  proprietors  themselves,  or  ^o  the  person  whom 
they  trust,  then  it  may  be  that  this  clause  applies.  The  defend- 
ants here  take  various  parts  in  managing  their  paper,  and  the 
learned  judge  was  right,  in  my  opinion,  if  he  said,  upon  the 
evidence  before  him,  that  the  libel  was  published  with  the 
defendants'  authority  and  consent,  if  not  with  their  actual 
knowledge,  and  that  the  protection  given  by  this  section  did  not 
cover  them  unless  they  showed  no  want  of  care  on  the  part  of 
the  editor. 

The  case,  however,  must  go  for  a  new  trial  upon  the  judgment 
of  the  majority  of  the  court. 

Lush,  J.  There  are  two  questions  for  our  consideration :  one 
as  to  the  construction  of  the  seventh  section  of  Lord  Campbell's 
act ;  the  other,  whether  the  evidence  adduced  at  the  trial  was 
BuiRcicnt  to  justify  the  direction  that  this  section  did  not  protect 
the  defendants.     And,  first,  what  was  the  object  of  this  section  ? 

The  act  professes  to  amend  the  law  of  libel,  and  to  understand 
this  particular  provision,  we  must  consider  what  was  the  state  of 
the  previous  law.  We  find  that  a  proprieto;  was  then  liable, 
criminally,  for  the  publication  of  a  libel  in  his  paper  without  hia 
knowledge  or  authority.  This  was  admitted  to  be  an  anomaly, 
and  felt  to  be  a  hardship. 

The  nuisance  case  cited  is  quite  a  different  matter;  that  was  a 
public  injury  for  which  there  was  no  private  remedy,  whilst  a 


i 


650 


AMERICAN  CRIMINAL  REPORTS. 


Aft  I 


-^-j 


libel  is  a  private  injury  for  which  a  public  remedy  has  been 
added  to  the  existing  private  one.  I  do  not  feel  at  liberty  to 
apply  to  this  section  the  limited  interpretation  which  has  been 
suggested.  What  is  the  fair  meaning  of  the  words  ?  They  seem 
to  me  to  exactly  apply  to  a  proprietor  \7hose  editor  admits  into 
the  paper  libels  without  his  authority.  The  last  part  of  the  sec- 
tion must  mean  that  a  proprietor  is  bound  to  exercise  proper  care 
and  caution  in  his  appointment  of  an  editor,  and,  if  he  does 
that,  he  is  not  responsible  for  the  editor's  acts  done  without  his 
authority,  consent  or  knowledge. 

This  is  the  remedy  which  the  legislature  would  naturally  apply 
to  such  an  admitted  anomaly  as  this  rule  of  law  was.  There  is 
ample  protection  for  the  public  without  injury  to  the  proprietor. 
The  evidence  tendered  in  this  case  ought  to  have  been  admitted, 
and  it  might  have  been  snflicient,  as  it  seems  to  me,  to  have  jus- 
tified the  jury  in  finding  for  the  defendants. 

Jiule  absolute  for  a  new  trial. 

Solicitors  for  prosecution,  Cfregory,  Rowcliffe  <Ss  Co.^  for  John 
Howard,  Portsmouth. 
Solicitors  for  defense,  Ford  cfe  Ford. 

Note.— In  People  v.  Wilson  (64  III,  195,  S.  C,  1  Am,  Cr.,  107),  the  Supreme 
Court  of  Illinois  punished  the  proprietors  of  a  newspaper  as  for  a  criminal 
contempt,  for  an  article  published  in  tlieir  newspaper  by  an  editor  in  their 
employ,  the  proprietors  having  no  knowledge  of  the  article  until  after  its 
publication. 


State  v.  Joaquin. 

(69  Me.,  218.) 

Pbbjxtbt:    Endeatoring  to  induce  a  witness  to  swear  faliely  in  a  suit,  to  be 

brought  hereafUr, 

A  statute  punishing  any  one  who  endeavors  to  procure  a  person  to  swear 
falsely  "in  a  proceeding  before  any  court,  tribunal  or  officer  created  by 
law,  or  in  relation  to  which  an  oiith  or  affirmation  is  authorized,"  does 
not  extend  to  a  case  wherein  a  person,  inteudiug  to  commence  a  suit  for 
damages,  tried  to  induce  a  person  to  swear  falsely  in  that  suit  when  it 
should  be  tried. 

It  seems  that  if  the  false  swearing,  which  it  was  sought  to  Incite,  would  in 
itself  constitute  a  proceeding,  or  be  the  first  step  in  one,  as  in  making  a 
false  complaint  before  a  magistrate,  the  act  of  procuring  the  false  oath  to 


STATE  V.  JOAQUIN. 


651 


n  a  suit  to  be 


be  made  would  be  indictable.  In  this  case  the  indictment  alleged  in  sub- 
stance that  the  defendant  intended  to  commence  a  suit  for  damages 
against  one  Fox,  for  liilling  his  sheep,  and  tliat  tlie  defendant  endeavored 
to  incite  one  George  to  swear  falsely  on  the  trial  of  the  suit,  tliat  he  had 
seen  Fox  dogging  the  defendant's  sheep. 

Peters,  J.  This  indictment  allocroa  that  the  respondent 
endeavored  to  procure  another  to  commit  perjury.  The  sub- 
stance of  the  matter  alleged  is,  that  the  respondent  intended  to 
commence  a  suit,  or  institute  a  pr-Koediiig,  in  wliich  the  perjury 
was  to  be  committed. 

"We  think  the  case  is  not  reached  by  the  statute  on  which  the 
indictment  is  founded.  The  true  rendering  of  the  statute  is, 
that  a  person  shall  be  liable  who  endeavors  to  procure  a  person 
to  swear  falsely  "  in  a  proceeding  before  any  cour*-.  tribunal  or 
officer  created  by  law,  or  in  relation  to  which  an  oath  or  affirma- 
tion is  by  law  authorized."  The  objection  is,  that  the  suit  or 
proceeding  was  not  pending.  It  might  never  be  commenced. 
Therefore  it  wjis  an  instigation  to  commit  an  offense  upon  a  con- 
dition or  contingency  that  might  never  happen.  This  was  rather 
an  ideal  than  a  real  offense,  morally  reprehensible,  no  doubt,  but 
not  such  as  the  law  sees  fit  to  notice. 

The  county  attorney  ingeniously  argues  that,  if  the  proceeding 
is  pending  it  may  never  come  on  for  trial,  and  that  the»e  is  no 
more  condition  in  the  way  of  a  suit  being  brought  than  there  is 
of  its  being  tried  after  it  is  pending  in  court.  But  there  is  a 
presumption  that  a  case  in  court  is  to  be  tried  or  disposed  of,  a 
presumption  of  continuance,  order  or  regularity  in  the  course  of 
judicial  proceedings,  while  there  is  not  a  presumption  that  a  per- 
son will  consummate  a  crime  that  he  may  have  had  in  contem- 
plation. 

No  doubt,  a  person  could  be  guilty,  under  the  statute,  of 
endeavoring  to  incite  another  to  commit  perjury  where  no  pro- 
ceeding is  pending,  but  where  the  act  done  would  itself  consti- 
tute a  proceeding.  A  man  might  be  induced  to  go  before  a 
grand  jury  and  falsely  swear  to  a  complaint.  A  pregnant 
woman  might  be  instigated  by  another  to  go  before  a  magistrate 
and  falsely  swear  to  proceedings  against  a  man  as  the  father  of 
her  bastard  child,  expected  to  be  born.  In  such  cases  the  acts  of 
the  foresworn  parties  would  have  the  effect,  per  se,  to  institute 
proceedings.  Mr.  Chitty,  in  his  Pleadings,  has  furnished  prece- 
dents for  such  indictments.    But  here  the  instigation  was  not  to 


652 


AMERICAN  CRIMINAL  REPORTS. 


commence  a  proceeding  by  false  swearing,  but  to  swear  falsely 
in  some  proceeding,  provided  at  some  time  before  some  court,  in 
some  form,  sliould  one  be  commenced. 

Demurrer  simtained. 

Appleton,  C.  J.,  Danforth,  Virgin  and  Libbky,  JJ.,  con- 
curred. 


M 


State  v.  Kilcrease. 

(6  Richardson  S.  C,  444.) 

Practice:    Quathing  indictment  not  found  on  Urjal  mde,nfe. 

If  an  indictment  is  found  on  the  testimony  of  witnesses  witu  are  not  sworn 
in  open  court,  tiie  indlciment  will  be  quashed  upon  motion. 

Indictment  for  murder. 

The  witnesses  on  the  part  of  the  state,  upon  whose  testimony 
the  indictment  was  found,  were  not  sworn  in  open  court  he  tore 
testifying,  but  were  sworn  by  the  grand  jury,  and  on  this  ground 
a  motion  was  made  on  behalf  of  the  prisoner,  l>ot"ore  pleading, 
to  quash  the  indictment.  The  motion  was  overruIi'<i,  .iini  the 
prisoner  excepted.  The  prisoner  was  then  put  upon  trial,  con- 
victed and  sentenced,  and  he  now  appeals. 

MoRKs,  C.  .r.  The  motion  made  in  the  court  below  to  cpiash 
the  indictment  should  have  prevailed.  The  practici!  in  this  state, 
following  the  rule  of  the  common  law,  which  retpiired  that  the 
witnesses  on  whose  testimony  the  bill  of  itniictmoiit  is  to  be 
passed  upon  by  the  grand  jury  must  be  sworn  in  open  court,  is 
coeval  with  its  administration  of  the  criminal  law.  So  important 
has  it  been  considered  as  one  of  the  securities  which,  ol'  right, 
belong  to  the  accused,  that  the  legislature  has  never  attempted  to 
deprive  liim  of  its  enjoyment,  or  in  any  way  to  abridge  the  safe- 
guards with  which  the  common  law  surrounds  a  party  charged 
by  a  bill  with  a  wrong  against  the  state.  A  grand  jury,  it  is 
true,  may  either  on  their  own  information  or  that  derived  from 
other  source,  make  a  presentment  on  which  a  bill  may  be  pre- 
pared and  submitted  by  the  prosecuting  otiicer. 

But,  even  then,  the  witnesses  to  sustain  it  are  sworn  in  open 
court,  and  no  other  course  has  ever  been  pursued  in  this  state. 


w, 


STATE  0.  KILCREA8B. 


653 


It  is  true,  in  some  of  the  states  a  change  has  been  made  by 
statute,  but  in  South  Carolina  the  rule  of  the  common  law  has 
always  been  lollowed.  In  Chitty  on  Criminal  Law  (vol.  1,  322), 
it  is  said,  "  each  witness,  before  he  leaves  the  court,  is  sworn  that 
the  evidence  he  shall  give  to  the  grand  inquest  against  the 
defendant  shall  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth." 

Mr.  Archbold,  in  his  first  volume  of  Criminal  Pleadings  and 
Practice,  page  98,  says :  "  The  witnesses  must  be  sworn  in  open 
court,  and  during  the  time  the  court  is  sitting."  See,  also, 
Wharton's  America's  Criminal  Law,  sec.  488. 

Neither  the  foreman  of  the  grand  jury,  nor  either  of  his 
fellows,  is  authorized,  by  the  mere  character  of  their  office,  to 
administer  an  oath,  and  it  is  more  than  questionable  if  perjury 
can  be  assigned  on  false  swearing  before  them.  If  the  witnesses 
are  not  sworn  in  open  court,  what  guaranty  has  the  accused  that 
they  were  sworn  before  their  evidence  was  taken?  In  the 
United  States  v.  Coolidge  (2  Gall.,  364),  it  was  held  that  if  the 
grand  jury  receive  the  testimony  of  one  not  under  oath,  the 
indictment  will  be  quashed. 

If  the  forms  and  sanctions  which  have  heretofore  been  recog- 
nized as  the  bulwarks  of  the  trial  by  jury  are  not  rigidly  adhered 
to,  the  constitutional  requisition  that  "  it  shall  remain  inviolate  " 
will  fail  to  accomplish  the  great  objects  it  was  intended  to  secure. 
No  matter  how  strong  the  edifice  may  be,  if  the  pillars  on  which 
it  rests,  one  by  one,  are  weakened,  the  great  work,  consecrated 
by  time,  must  at  last  crumble  into  dust.  It  is  safest  to  retain  it 
in  its  pristine  form  and  vigor. 

As  the  motion  must  prevail  on  the  ground  first  taken,  it  is  not 
necessary  to  consider  the  other  points  raised  by  the  appeal 
The  motion  to  quash  the  indictment  is  granted. 

Wright,  A.  J.,  and  Willaed,  A.  J.,  concurred. 


li 


654 


AMERICAN  CRIMINAL  REPORXa 


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State  v.  Robinbon. 

(3  Lea,  Tenn.,  114.) 

PRkcnoMt    TUa  in  dbataneni — Indieiment  not  bated  on  proper  eeidenee  —  For- 

mer  jeopardy. 

It  is  a  good  plea  in  abatement  to  an  indictment  that  tlie  prosecutor  was  not 
•worn  to  testify  before  tiie  grand  jury  as  to  the  matters  alleged  therein, 
but  having  been  summoned  before  the  grand  jury  to  testify  as  to  matters 
concerning  which  the  grand  jury  possessed  inquisitorial  powers,  gave 
testimony  in  that  investigation,  upon  which  the  indictment  was  found. 

Where  the  issue  upon  such  a  plea  in  abatement  has  been  found  in  favor  nf 
the  prisoner,  and  the  jury  has  been  discharged  without  having  rendered  a 
verdict  upon  (he  plea  of  not  guilty,  the  prisoner  should  be  held  to  answer 
a  new  indictment.  The  former  indictment  possessing  no  legal  validity, 
the  prisoner  was  never  in  legal  jeopardy. 

HoFARLAim,  J.  To  this  indictment  for  larceny  the  defendant 
pleaded  in  abatement  in  substance  that  it  was  found  upon  the 
testimony  of  the  prosecutor,  who  was  not  sworn  to  give  testi- 
mony upon  the  indictment,  but  was  summoned  before  the  grand 
jury  to  testify  as  to  uiIeiiBes  as  to  wliich  the  grand  jury  liave  inijui,*- 
itorial  power,  and  was  sworn  accordingly,  and  upon  this  exairiiim- 
tion  testified  in  relation  to  this  offense,  and  that  afterwai'd  rlie 
indictment  was  drawn  and  foniid  by  the  grand  jury  uj)on  the 
testimony  previonsl}'  had  by  them  in  the  manner  stated.  The 
jury  were  sworn  to  try  the  truth  of  this  ])lea,  and  also  to  try  the 
issue  upon  the  defendant's  plea  of  not  guilty.  They  found  the 
issue  on  the  plea  in  abatement  in  favor  of  the  defendant,  and  tlie 
court  thereupon  discharged  him,  and  the  jury  were  (lisehar<;eil 
without  rendering  a  verdict  on  the  ])lea  of  not  guilty,  so  far  us 
appears,  without  the  consent  of  defendant. 

The  attorney-general  has  a]>pealed.  The  proof  sustains  tiie 
finding  of  the  jury,  which  we  think  was  a  valid  plea. 

Judgment  afHrmed,  but  the  p/isoner  should  be  held  for  another 
indicttnent,  inasmuch  as  although  the  jury  were  sworn  to  try  the 
defendant  upon  the  plea  of  not  guilty,  and  discharged  without 
his  consent,  the  indictment  not  being  valid,  he  may  bo  indicted 
and  tried  again. 

NoTR. — For  a  number  of  cases  in  which  indictments  were  quashed  for 
grounds  similar  to  those  set  up  iu  the  plou  in  abatement  in  tliis  case,  sec  note 
to  State  «.  Leicliam,  ante,  p.  1!)2. 


?'![ 


INDEX. 


ABORTION. 


L  At  the  common  law,  the  unlawful  use  of  instraments  or  drugs  upon  a  preg- 
nant woman,  though  with  her  consent,  for  the  purpose  of  producing  an 
abortion,  if  it  resulted  in  her  death,  was  murder;  while  the  statute 
reduces  the  crime  to  manslaughter  in  the  second  degree.  State  «.  Diek- 
tTuon,  I 

1  Ret  OtiUt. 
In  a  criminal  action  for  producing  the  death  of  a  preg  ant  woman  by 
administering  drugs  or  using  an  inHtrument  upon  her  for  the  purpose 
of  destroying  the  child,  where  it  was  shown  that  the  deceased,  shortly 
before  the  death,  visited  defendant's  house,  the  court  admitted  evidence 
of  conversations  betwcien  the  deneased  and  the  witness,  occurring  about 
the  time  of  such  visits,  in  relation  to  the  object  for  which  they  were 
made,  but  instructed  the  jury  that  they  coulcl  consider  such  testi-^'uy 
only  as  it  tended  to  show  the  purpose  or  intention  with  which  >he 
deceased  visited  tlie  defendant,  and  not  as  evidence  that  defeiuliint 
a(.luiilly  i)erl'orme(l  llie  acts  (.harged.  Ikkl,  that  tlierc  wns  no  error; 
proof  of  suoli  visits  beinir  clearly  !ulinissil)lo,  and  the  otlicr  facts  lesli- 
lied  to  lieiiii;'  coineiiipoiiineous  wilL  the  visits,  aud  so  eoiiiieeteti  with 
them  us  to  illuslrutc  ihiir  cliaracler,  aud  being  therefore  a  part  of  tho 
res  gesto'.  J  bid, 

8.  Dying  dechimtiom. 

In  prosomtioiis  for  any  form  of  homicide,  the  dying  declarations  of  the  iier- 
son  wiiose  death  is  the  sul)ject  of  the  charge,  in  respect  to  tlie  eii.iiin- 
Btances  of  tlie  deiilh,  are  admissil)lc  iu  evidence,  notwitlistauding  ilie 
clause  in  tlie  bill  of  rights  whieli  secures  to  the  accused  tlie  rigiit  to 
"  meet  the  witnesses  face  to  face."  Ihid. 

4.  In  a  criminal  case  every  mateiial  fact  must  be  proved  beyond  a  ronsoiuible 
doubt;  and,  iheieidre,  uu  inNtnietion  in  an  almrtiou  ease,  that  if  Ihe 
fatt  of  the  pregnancy  and  the  time  and  place  of  the  alleged  crime  are 
fully  and  clearly  proven,  and  it  is  proved  beyond  a  reasonable  doubt 
that"  tiie  defendant  administered  drugs  or  introduced  instruments  witli 
intent  to  produce  a  miscarriage,  he  should  be  convicted,  is  erroneous. 
State  V.  Stewart,  ttOB 

ABSENT  WITNESS. 

It  is  only  when  a  witness  is  dead  tiiat  his  evidence,  given  on  the  first  trial 
of  a  criminal  case,  can  be  proved  on  tlie  second  trial  of  tlie  same  case. 
The  fact  that  he  is  out  of  the  state,  and  his  residence  unknown  at  the 
time  of  the  second  trial,  does  not  malie  his  former  testimony  compe- 
tent    OoUim  V.  timmohweallh,  *b8 

See  Note,  p.  281 


ii' 


(11 


"-11 


'.IS 


-m 


'I' 


656 


INDEX. 


ADMISSIONS  AND  CONFESSIONS. 

W.  was  indicted  for  stealing  |150,  the  money  of  S.  On  the  trial  it  was 
proved  that  J.,  a  detective,  arrested  W.,  who  made  a  confession,  which 
was  made  under  promise,  and  was  excluded  as  evidence.  In  this  con- 
fession he  directed  J.  to  go  to  certain  gamblers  and  get  the  money  back 
from  tlieni.  J.  sent  for  tlie  gamblers  named,  and  told  them  what  W. 
had  said,  and  they  paid  over  to  J.,  for  8.,  $104,  though  one  of  them 
protested  that  W.  had  not  been  at  his  house,  and  the  others  denied  that 
he  had  lost  the  money  claimed  with  them.  The  balance  of  the  money, 
$46,  was  paid  over  by  the  fatlier  of  W.  Ilekl,  it  not  being  proved  that 
tlie  money  paid  to  j'.  was  the  same  lost  by  S.,  the  statement  of  W.  to 
J.,  and  of  what  passed  between  J.  and  the  gamblers  and  the  father  of 
W.«  is  not  competent  evidence.     WUliama  v.  Uommonwealth.  67 


ADULTERY. 

Bee  Note,  p.  175. 


3 


-I 


ARREST. 
Bee  Escape;  Homicidb. 

ASSAULT  AND  BATTERY. 

L  Authority  of  tuperintendent  of  poor  hotue. 

The  superintendent  of  a  county  poor  house  has  a  right  to  use  gentle  and 
moderate  physical  coercion  toward  the  inmates,  so  far  as  may  be  neces- 
sary, for  the  purpose  of  preserving  quiet  and  subordination  among  the 
inmates,  and  is  not  guilty  of  assault  and  battery  la  so  doing.  State  n. 
Neff.  176 

8.  Under  an  information  charging  an  assault  and  battery,  "with  malicious 
intent  to  maim  and  distigure,"  the  jury  found  a  verdict  of  "guilty  as 
charged  in  tlie  information,  witli  the  malicious  intent  as  imi)lied  by 
law."  Held,  that  this  verdict  was  a  verdict  of  giiilty  of  a.ssault  and 
battery,  and  would  support  a  judgment  for  that  offense.  State  v.  Bloe- 
dow,  631 


ATTEMPT. 

7;  seems  that,  under  the  statute,  "  whoever  attempts  to  commit  any  offense 

Eroliibited  by  law,  and  does  any  act  towards  it,  but  fails,"  etc.,  "a 
are  solicitation  is  not  an  att(!inpt,  except  it  be  such  a  solicitation 
who.se  immediate  tendency  is  to  provoke  a  breach  of  tlie  peace,  as  a 
challenge  to  light,  or  to  the  obstruction  of  or  interference  with  public 
Justice,  as  where  perjury  is  advised,"  etc.     Cox  «.  People,  829 


AUTERFOIS  ACQUIT. 
Bee  FoKMKK  Jeoi-ahuy. 

AUTKRPOIS  CONVICT. 
Bee  FouHBR  Juoi'audy;  LAaoJiirr. 


INDEX. 


BASTARDY. 


657 


al  it  was 
)n,  which 

this  coD- 
)ney  back 
what  W. 
I  of  them 
cnied  tliat 
le  money, 
■oved  that 

of  W.  to 

i  father  of 

67 


gentle  and 

ly  be  neceft- 
among  tlic 


S- 


State  p. 
176 


1.  An  objection  that  tliorc  was  no  evidence  that  the  bastard  was  born  or 

bcgiiten  in  tiie  slate  of  Illinois,  madi;  lor  the  tirsl  lime  in  the  Supreme 
Court,  comes  to'i  late.     Hoirkim  v.  I'eojiie,  178 

2.  An  aitpeal  lies  in  basliirdy  cases  from  the  county  to  the  circuit  court,  att'.ie 

suit  of  the  proseeulin,n  witness  Ibid. 

K.  Proceedings  in  a  bastardy  case  are  not  abated  by  the  death  of  the  child, 
where  the  child  was  living  at  the  time  the  proceedings  were  insti- 
tuted. Ibid. 

4.  Non-remdent  prosecutrix. 

Although  llie  complainant  in  a  bastardy  case  is  not,  and  never  has  been,  a 
resident  of  the  state,  and  the  child  was  begotten  in  another  state,  yet 
whcMi  the  mother,  rohik  prcgnitnl,  comes  into  the  state  and  instiluKa 
pro(U!eding8  against  the  iiutiitive  father  in  the  county  where  he  is  found, 
her  non-residence  is  no  bar  to  the  proceedings.     Kulbe  v.  People,        177 

fi.  Secnriti/  for  costs. 
The  statute  of  Illinois,  reqiuring  a  non-resident  plaintiff  to  give  a  bond  for 
costs,  does  not  apply  to  bastardy  prooeedings.  Ibid. 

(>  hx&  ba.-.iardy  proreeding  the  paternity  of  the  child  must  be  established 
bej'ond  a  reasonable  doubt.     Biker  v.  State,  606 

Hut  see  NoTic,  p.  608. 

7.  Where  it  appears,  from  the  testimony  of  the  prosecutrix,  that  she  had 
sexual  intercourse  with  two  dilTcrent  ]>erson8  so  nearly  tlie  date  of  con- 
ception that  either  of  them  mii^ht  lie  the  father  of  the  child,  a  convic- 
tion cannot  be  bad,  altlmugli  the  prosecutrix  swears  thai  conception 
resulted  from  the  tirsl  act.  It  is  impossible  that  she  should  know 
this.  Ibid. 


.■■V. 


if 


•I 
t 


■  M 


malicious 

"guilty  as 

implied  by 

assault  and 

Uate  V,  Bloe- 

631 


8, 


any  offense 
""  etc..  "a 
solicitation 
peace,  as  a 
Willi  public 
820 


BIO.XMY. 

See  NoTK,  p.  175. 
1.  Indictment. 
An  indictment  for  bigamy,  which  does  not  allege  the  time  and  place,  and 
the   person   to   whom    the   respondent   was  first    married,   is    bad    on 
demurrer.     Davii  b.  V<rmmoniciiilth,  163 

*.  Good  faith. 

A  record  of  divorcii,  which  is  incomplete  on  its  face,  is  not  admissilde  in  a 
prosecution  for  bigamy,  cither  for  the  i)urpose  of  disproving  the  charge 
In  the  indictment  Or  for  the  purpose  of  establishing  the  goo  I  faith  of 
the  resjiondenl,  in  contracting  the  alleged  bigamous  marriage.  Her 
honest  belief,  that  siie  had  been  lawfully  divorced  from  her  first  hus- 
band, is  no  d((fense  to  the  charge.  Ibid. 

fl.  Poriii  Jiilc  hilicf  of  death  of  first  husband. 

To  an  indictment  for  bigamy  it  is  a  good  defense  that,  at  the  time  of  the 

bigamo\is  m;irriage,  the  prisoner  liad  a  ri'asonable  and  bona  fide  hl^'wl 

that  her  biishand  was  dead,   allhough  seven  years  had  not  elapsed 

since  she  last  heard  of  him.     Rer/ina  v.  Mtmre,  608 

4.   Marriage  of  a  man.  irhim  wife  had  obtained  a  dirovee  for  his  misconduct. 
Under  a  statute  which  provides  that  a  divorced  |ierson,  "who  is  the  gtiilty 
cause  of  such  divorce,"  shull  be  deemed  guilty  of  bigamy  if  he  mar- 
ries again  during  \\w  lifetime  of  his  divorced  wife,  such  an  one  can- 
not bo  convicted  of  bigamy  under  uu  indictment  which  merely  charges 

Vol.  11.-43 


658 


INDEX. 


n 


Wgamy  in  the  ordinary  manner.  In  snch  a  case  the  Indictment  must 
allege  the  divorce,  and  that  the  defendant  was  the  guilty  cnuse  thereof, 
and  all  the  other  facts  necessary  to  bring  the  case  within  the  terms  of 
the  statute.     Commonwealth  v.  liiefiai-dnon,  Qjj 

6.  Marriage  by  agreement  of  parties. 
It  is  improper  to  charge  the  jury  that  "a  marriage  was  good  without  any 
ceremony,  and  by  the  mere  consent  of  tlie  parties,  if  the  parties  intended 
marriage,  and  that  intent  sufflciently  appears."  It  is  deficient  in  not 
adding  that  such  consent  and  intent  must  be  followed  up  by  actual 
cohabitation  tliercundcr  as  man  and  wife.     Taylor  v.  State,  13 

6.  Euideuee  of  marriage. 

On  a  trial  for  bigamy,  proof  of  the  first  marria-^e  by  the  minister  who 
solemnized  tiie  rites,  and  the  marriage  license,  with  his  ceifificate 
thereon,  is  sutlicicnt  proof.  It  is  not  a  valid  objection  tiiat  liie  min- 
ister was  not  properly  orilained  as  a  minister  of  the  gospel,  according 
to  the  rules  and  regulations  of  his  church.  Itdd. 

7.  Where,  in  bigamy,  the  first  wife  was  known  by  two  names,  the  question 

to  lie  considered  by  the  jury  is  the  identity  o*  the  woman,  and  not  her 
name,  ami  it  is  proper  tor  tlie  court  to  .so  instruct  the  jury.  It  is  liie 
identity,  and  not  the  name,  that  is  submitted  to  the  jury.  Ibiiji 


EVIDENCE  OP  MARRIAGE. 
See  Note,  p.  17. 


BLACKMAIL. 

Indictment. 
An  indictment  which  alleges  in  substunne  that  the  respondent  threatened  to 
falsely  accuse  the  prosecutor,  through  hand-ltijis  and  newspapers,  of 
keeping  a  woman  as  bis  mistress,  with  intent  to  extort  money  or  prop- 
erty from  him,  is  sutlicienl  under  the  Indiana  statute:  2  R.  iS.  1870,  p. 
44i).    Kistler  v.  Slate,  18 


BRIBERY. 

An  indictment,  charging  a  prosecuting  officer  with  rcrcfving  the  promissory 
note  of  an  accused  person  as  a  bribe  to  influence  his  ofllcial  conduct  in 
favor  of  the  accused  person  in  a  criminal  prosecution  then  pending,  is 
bad.  A  promissory  noti',  Lriven  for  such  a  purpose,  is  absolutely  void. 
To  make  out  a  case  of  briitery,  it  must  be  shown  that  the  officer  actu- 
ally received  something  of  value.     State  v.  Walla,  88 


BURGLARY. 


A  person,  in  the  night  season,  entered  a  dwelling-house,  without  breaking, 
for  the  purpose  of  (■oinmittiiiir  a  felony,  but  broke  out  in  making  his 
rsr.aoc.     Held  to  be  burirhirv.     State  v.  Ward.  27 


escape.    Held  to  be  burglary.     Slate  v.  Ward, 

CHARACTER. 
Bee  RicPCTATioN. 


confi-:sstons. 

Bee  Admissions  and  CoNFESSiONa. 


INDEX. 


659 


ment  ina<ft 

ise  thereof, 

le  terms  of 

G12 


without  any 
ies  intended 
lent  in  not 
>  by  actual 
13 


linister  who 
s  cci'tificiite 
ml  the  inin- 
il,  ucconling 
Ibid. 

the  question 

and  not  her 

y.     It  is  the 

JbicL 


CONSPIRACY. 
I,  Tndietment. 

In  an  indictment  or  information  for  a  conspiracy  to  do  a  lawful  act  by  crim- 
inal means,  tlie  meuns  must  be  particularly  set  forth.  But  if  tlu-  con- 
spiracy b;;  to  do  an  act  in  itself  unlawfur(whether  at  common  l;iw  or 
by  statute),  the  means  by  which  it  was  to  be  accomplished  need  uot  be 
stated.     State  v.  Crowley,  jj3 

S.  Same. 

Thus,  where  tlie  object  of  the  conspiracy,  as  charged,  was  to  obtain  money 
from  a  cei-iaiu  person  "by  false  iiretenses,  and  by  false  and  |>rivy 
tokens  and  sul)tle  means  and  devices,"  it  was  not  necessurv  to  ~liilu 
more  specifically  such  pretenses,  tokens  or  devices,  the  obtaining  money 
on  false  pretenses  being  a  crime  by  statute.  Ibid. 


CONSTITUTIONAL  LAW. 

It  seems  that,  in  Illinois,  if  the  title  of  a  bill  fully  covers  the  subject  of  a 
bill  at  tlie  time  that  it  passes  tlie  senate,  and  afterwards  its  title  is 
amended  in  the  senate  by  less  than  a  majority  of  the  senators  elect,  if 
the  amended  title  fully  embraces  the  objects  of  the  bill,  and  tlie  bill, 
with  the  amended  title,  is  passed  by  the  house  of  representatives,  and 
is  in  that  form  constitutionally  passed  through  that  body,  the  law  is 
constitutionally  adopted.  It  is  not  necessary  that  the  title  by  which 
the  bill  passes  both  liouses  should  be  the  same,  so  long  as  both  titles 
fully  cover  tlie  object  and  purposes  of  the  bill.    Johnson  v.  People,  896 


threatened  to 
wspapcrs,  o( 
Dtiev  or  prop- 
It  &.  1870,  p. 
18 


le  promissory 
111  conduct  in 
n  pending.  Is 
isolutely  void, 
oillcer  actu- 
23 


lOUt  breaking, 
,n  making  his 
27 


CONTEMPT. 

1.  Certain  property  having  been  replevied,  while  the  suit  was  yet  pending,  the 

defendiint  in  replevin  took  the  property  out  of  tlie  possession  of  the 
plainiiff  in  replevin,  and  placed  it  beyond  his  reach  and  of  the  officers 
of  the  law.  JJcld,  that  the  court  had  jiower  to  order  the  property  to  be 
restored  to  the  plaintiff,  and  to  enforce  the  order  in  case  of  its  disobe- 
dience by  attachment  for  contempt.    Knott  v.  People,  184 

2.  The  respondent  in  an  attachment  for  contempt  having  been  heard,  and  hii 

recognizance  given  to  appear  on  a  future  day  to  abide  the  judginenl  of 
tlie  court  then  to  be  delivered,  cannot  on  that  day  file  new  allldaTits 
and  dispute  the  propriety  of  the  rule  which  he  h:i8  disobeyed.        Ibid. 

8.  AtokUng  ncrvicc  of  prorenit. 

The  return  of  an  ollicer  .showing  an  attempted  ser\iee  of  a  subpcDna  (m  a 
witness,  whicii  could  not  be  eom|ileted  by  reason  of  the  witness  run- 
ning awuy,  is  a  .sulllcieiit  Imsis  for  the  issuing  of  an  attachment  against 
the  witness  for  his  failure  to  appear  in  obedience  to  the  subpoena. 
Wilii'iii  V.  Slate,  183 

4  ConclusivcncsH  of  anstcrr  to  rule  to  sJiotc  cause. 

An  attachment  for  a  contempt  in  disobeying  a  subpfcna  having  been  served, 
the  delentlant  llled  a  written  sialement  under  oath  denying  the  facts 
constituting  the  alleged  contempt,  and  disclaiming  imy  intenti(m  of 
disobeying  the  i>rocess  of  the  (ourt.  Held,  that  the  answer  of  the 
respondent  was  ctuiclusive,  and  that  it  was  error  to  subject  the  respond- 
ent to  an  oral  examination,  or  to  hear  evidence  aliunde  for  the  purpose 
of  disproving  the  Blatcmeut  and  establishing  the  alleged  contempt.  lOid. 

And  see  E.vpeut  Witness,  , 


660 


INDEX. 


¥W   ii^ 


CONIINUANCB. 

1.  Where  fho  affldjivit  of  tho  prisoner  for  a  confiniiance  shows  that  he  was 

ancstc'l  on  tlio  Dili,  ami  hcinir  inimfMiialcly  indicted,  wiis  brought  up 
for  Iriiil  on  ilic  llili,  and  alhigis  tliat  he  lias  had  no  opportunity  to  con- 
fer with  eounsi'l;  that  he  is  innocent  of  the  crime  charged,  ancl  tiiat  ho 
cannot  at  onec  safely  proceed  to  trial  on  account  of  the  absence  from 
the  state  of  a  witness  whoso  name  and  residence  are  piren,  and  the 
affidavit  shows  what  facts  tlie  prisoner  expects  to  prove  by  the  witness, 
and  the  court  can  see  that  those  facts  are  material  to  the  defense,  and  the 
affi<lavil  further  alleires  that  the  witness  is  not  absent  through  tlie  pro- 
curement of  the  prisoner,  that  he  has  used  all  possible  diligence  in 
endeavoring  to  get  ready  for  trial,  and  that  he  expected  to  be  able  to 
procure  the  attendance  o^  the  witness  at  the  next  term  of  the  court,  it 
is  error  to  refuse  a  continuance.     CorUey  v.  People,      .  445 

2.  A  person  indicted  for  unlawfully  selling  liquor  to  an  Indian,  which  is  a 

misdemeanor,  demanded  an  immediate  trial.  The  district  attorney 
n..)ved  for  a  continuance,  on  an  affidavit  that  he  expected  to  prove  all 
the  material  facts  of  the  indictment  by  two  witnesses  whose  attendance 
he  could  not  now  procure.  Counsel  for  respondent  offered  to  admit 
that  the  witnesses,  if  present,  would  testify  as  set  forth  in  the  afFulavit. 
The  court,  upon  this  admission  being  made,  refused  a  continuance,  and 
proceeded  with  the  case.  HeM,  the  defendant  could,  and  did,  in  this 
case,  waive  his  constitutional  right  to  be  confronted  with  the  witness, 
and  that  the  affidavit  for  a  contiuuanc(,'  was  projierly  admitted  in  evi- 
dence against  the  defendant.     United  Slates  v.  Sacramento,  442 


DISTURBING  RELIGIOUS  MEETING. 

On  the  trial  of  an  indictment  for  disturbing  a  religious  congregation,  it  was 
in  evidence  that  the  defendant,  either  just  before  or  sliorily  aft(T  liie 
beginning  of  the  services,  rose  up  in  the  church  and  bigan  to  speak  on 
matter-*  connected  with  his  expulsion  from  the  church,  whieii  had 
occurred  a  siiorl  time  pniviously;  that  tlu'  minister  liireiicd  him  to 
stop,  when  he  declared  he  would  be  heard,  and  persisted  in  speaking 
unlil  h(!  was  removed  from  Die  house;  that  he  tlicreupnn  re-entered  and 
resumed  his  speaking,  not  withstanding  rei>eate(i  renumsl  ranees  from  ttie 
minisler,  and  by  his  conduct  and  voice  so  inlerruple(i  tlic  sirviee<  tliat 
the  meeting  was  broken  up.  Jldil,  tiiat  tipon  this  eviileiice  the  jury 
were  warranted  in  returning  a  verdict  of  guilly.     Stuff  i\  /{hiiikhi/,    ][i{i 

On  such  trial,  evidence  as  to  "before  what  body  the  defendant  was  tried" 
was  inadmissible;  also,  as  to  "how  inemliers  of  iliat  church  were  tried 
and  convicted;"  also,  as  to  the  manner  of  defc'inlant's  expulsion  and  its 
propriety;  also,  as  to  whether  the  official  board  or  tlw!  members  of  the 
church  had,  umler  its  rules,  authority  to  expel.  Ilnd. 

On  such  trial,  a  witness  introduced  by  the  stati-  testified,  on  crosa-examina- 
tion,  that  he  had  "taken  the  defendant  to  task  for  sowini;  the  seeds  of 
discord  and  spreading  false  views."  Hi/d,  to  be  inadmissible  to  further 
Incpnre  wliat  those  false  views  were.  Jl/id. 

On  sucii  Iri.il,  it  was  admissible  for  the  state  to  ask  a  witness  "  if  it  was  a 
cusioni  in  this  church  for  an  expelled  member  to  get-up  on  the  Halil)ath 
day,  Ju.-t  before  or  at  the  beginning  of  the  regular  service,  and  in.iko 
known  his  gri.  vances  ?"  Ihid. 

It  is  not  ncf.e.ssury  to  constitute  the  offense  of  disturbing  a  religious  con- 
gregation, ili.'it  the  congrcLration  should  lie  actinilly  engaged  in  acts  of 
relitrious  W'  rship  at  the  time  of  the  disturbance;  it  is  sufficient  if  they 
are  as-emliled  for  the  purpose  of  worship,  and  are  prevented  therefrom 
by  tlie  ;icts  of  the  defendant.  Il>i4. 


''4  ii 


■'""^ 


INDEX. 


661 


.8.  Where,  on  such  trial,  the  cmirt  c;h!ir<rert.  at  the  defendant's  request,  "  that 
the  act  of  dislurlmncc  must  Ix-  Wiiiilon,  intentionul  ami  cout-  inptuoUB," 
but  addwl  "  that  the  ads  would  l)c  wanlon  if  done  wu'.  om  regard  to 
consequences— that  is,  for  some  puriiose  of  his  own,  and  with  intent  to 
do  tliini,  whether  he  tlicreln  disiurlicd  the  comrregution  or  not."  Held, 
not  to  lie  eiTor:  S(,ik  v.  J<n,p,r.  4  Dev.,  a2;i;  StaU'  v.  Swink,  4  Dev.  and 
Bai.,  ;ir)8;  Stole  i\  huher,  8  Ire.,  Ill;  State  v.  Linkhuw,  (id  N.  C,  214. 
cited,  distinguished  and  aiiproved.  Jbid. 

DIVORCE. 
See  Bigamy;  Founicatiok. 

DOG. 
See   Laucent. 

DYING  DI'X'LAllATIONS. 

1.  On  the  trial  of  a  case  where  it  appeared  that  two  jxTsons  were  killed  by 
the  prisoner  at  the  same  time,  and  under  the  Hamc  einumstaiiccs,  one 
of  whom  died  in.stantly  and  the  otlu'r  survived  a  tew  liours,  tlie  pris- 
oner being  on  trial  for  the  murder  of  the  oni'  wluxlied  instiuitly,  it  wan 
held  error  to  adnut  in  evidence  the  dying  deelanilioiis  of  the  one  who 
survived  a  f(!W  hours,  his  death  not  being  the  subject  of  the  ciuirge. 
State  v.  Bohan,  278 

%.  Dying  declarations  can  only  be  admitted  in  evidence  when  they  relate  to  the 
act  of  killing,  and  the  circumstances  immediately  attending  it,  and 
forming  part  of  the  ren  gentw.     CoUinit  «.  t'ominonmidth,  288 

8.  Where  the  fact  of  the  killing  was  prMctically  admitted,  ii  was  held  error  to 
admit  dying  dc<'larat ions  wliichwcre  in  sulisiance  as  follows:  "Michael 
Collins  killed  nu',  anil  killeil  me  for  nothing,"  and,  "I  never  carried 
anything  to  hurt  any  one."  IMd. 

4.  Where  dying  dticlarations  are  offered  in  evidence,  it  is  the  province  of  the 
court  to  decide  tipon  their  cnmpcieiK'y,  and  where,  before  they  are 
introduii'<l,  the  n'S|)onilcni  off  is  to  prove  that  at  the  time  the  sujiposed 
dying  (IcclarMtions  were  made  the  deceased  did  not  lielieve  he  was  going 
to  die,  it  is  the  duty  of  the  court  to  hear  this  evidence  and  deciile  the 
question  of  fact  ix  lore  atlmitting  the  declarations.     Stule  c.  KUiott,  {J23 

6.  Where  tlying  declarations  are  admitted  in  evidence,  the  rcsi)ondent  has  the 
righl'lo  show  that  the  deceased  did  not  believe  in  God,  or  in  a  future 
Stale.  Tlie  declarations  cannot  be  excluded  on  this  ground,  but  this 
proof  iM  material  as  affecting  their  ereilibilily.  Ibid. 

Bee  AuouTioN;  see,  also.  Note,  p.  11, 


ELECTION. 

1.  It  is  a  matter  within  the  discretion  of  the  trial  court,  whether  the  district 

attorney  shall  be  reiiuired  to  elect  ui)on  wiiieh  of  several  c(mnts  in  the 
information  he  will  proceed,  and  the  detertiiination  of  that  court  will 
not  be  reversed,  except  for  an  abuse  of  discretion.     SUite  v.  Ijekham,  117 

2.  In  an  information  under  sec.  37,  cli.  Hi5,  It.  8.,  one  count  was  for  larceny- 

by  a  fraudulent  conversion  of  chattch,  which  came  into  defendants 
possession  as  an  agent,  and  n  second  count  was  for  larceny  by  a  like 
conversion  of  momn  received  byhim  as  such  agent,  and  it  was  admitted 
that  both  counts  were  based  "upon  the  sanu'  traiisac^tion.  llehl,  that 
there  was  no  error  in  refusing  to  require  the  i)ro.seciition  to  elect,  before 
the  evidence  was  in,  on  wiiich  count  it  would  proceed.  Ibid. 


662 


INDKX. 


EMBEZZLEMENT. 

1.  Church  enllector. 

A  collfclor  of  ]icw  rents  for  a  church,  wlio  is  entitled  to  "five  per  cent  of 
all  till'  )it'\v  rents,  no  mutter  wliot^olleclcd  llietn,"  is  ii  joint  owner,  with 
the  coiiiiri'iraiion,  of  the  pew  ri'iils,  ami  i>  not  sruilly  of  eniln/./.lenient 
in  frauiiulenlly  eonverliiiii  Ihr  pew  rrnis  to  liis  own  use.  They  mh!  not 
the  proixTly  of  another,  within  the  meaning  of  statute  ai^ainst  emhez- 
zlement.     State  v.  Ki  iit,  107 

2.  Where  money  is  phuied  in  the  hands  of  the  respondent,  to  he  loaned  for 

one  year  at  leii  jier  cent  int('r(!st,  and  a  part  of  it  was  by  him  converted 
to  his  own  use,  if  the  defendant  acted  merely  as  an  ai^ent  in  the  matter 
he  is  guilty  of  embezzlement;  but  if  he  guarantees  tiie  payment  of  ten 
percent  interest,  and  is  personally  liable  for  the  repayment  of  money, 
no  embezzlement  is  committed.     Ki'iba  v.  People,  109 

3.  Evidence  of  other  aet». 

In  a  prosecution  for  embezzlement  it  is  error  to  allow  evidence  to  be  given 
of  other  distinct  embezzlements.  Ibid. 

4.  Bote.lhfiper. 

Under  th(!  Michigan  statute  (Laws  1875,  p.  105),  making  one  to  whom 
money,  goods,  or  other  property  the  subject  of  larceny  shall  have  been 
delivered,  and  who  shall  embezzle  or  fraudulently  convert  the  >anie  to 
his  own  use,  etc.,  guilty  of  larceny,  it  is  a  Kutllcient  ddiviiy  of  Irunk.s 
and  baggage,  where  the  checks  for  the  same  are  delivered  to  resjxm 
dent,  and  lu;,  acting  under  the  authority  which  the  delivery  of  such 
checks  gavi'  him,  has  assumed  the  riirht  to,  and  has,  e.xei'cised  acts  of 
possession  and  control  over  the  trunks  and  l)aggage.  I\»ple  v.  JJiih- 
band,  ^  111 


"  a 


6.  Same. 
The  fact  that  a  hotel-keeper.  >o  whom  checks  for  bagirage  have  been  deliv- 
ennl  by  a  guest,  would  have  a  lien  upon  the  baguieii!  for  the  l)ill  of  such 
guest,  would  give  him  no  aufiioriiy  to  dispose  of  the  properly  iis  his 
own,  and  would  not  justily  his  conversion  of  the  same  to  his  own  use, 
or  o'f  itself  preclude  his  bein;;  lield  under  said  statute,  on  the  ground 
that  he  was  a  bailee,  with  a  special  property  in  the  goods.  I/M. 

6.  Same. 

And  instructions  to  the  jury,  tha'  in  case-  ihey  found  defendant  claimed  to 
have  a  lien  upon  the  goods,  and  thought  he  had  a  right  to  pledge  tlie 
goo(N  by  viriU(iof  having  such  lien,  then  such  claim  of  right,  if  ma(lft 
in  good  faith,  would  negative  an  intent  to  deprive  the  owner  of  her 
goods,  are  as  favorable  in  this  regard  to  the  respondent  as  he  is  entitled 
to  demand.  J  bid. 


7.  Bu  aqeni  for  sale  of  tnaehinen. 

Defendant  being  in  possession  of  certain  machines  as  agent  of  the  owners 
for  llieir  sale,  etc.,  and  lioimd  by  his  contract  with  them  to  sell  upon 
certain  terms  and  coniiiiions.  sold  to  M.  some  of  said  machines  for  the 
purpox'  of  getting  money  from  M.  with  which  to  jiay,  and  witli  wliich, 
pursuant  to  a  stipidalion  with  .M.,  he  did  immediately  pay,  an  indebl- 
edness  of  his  own.  lor  which  .M.  was  surely.  M.  look  and  I'.eld  posses- 
sion of  tlie  machines,  having  stipulated  with  defendant  that  the  latter 
might  purchase  ihein  bai'k  by  icpjiyiiig  the  money  so  ailvanced.  ThcNC 
transactions   were  without  the  ^-oiisent  or  knowledge  of  defendant's 

Erincipals,  and  in  violation  of  tin;  terms  of  his  contract  with  them,  and 
e  u(!ver  accounted   to   them   for  such  inachin<'s;   ami  tin?  evidence 
excluded  the  supposition  that  he  did  not  know  that  the  machines  were 


•w^ 


INDEX. 


663 


per  cent  o( 

owner,  with 
iiln/./lt'incnt 
riu'V  iirc!  not 
linst  eniboz- 
107 

;  lo;in(!d  for 
m  ci  inverted 
n  the  matter 
'inent  of  ten 
it  of  inonev, 
109 


to  be  givpn 
Ibid. 


ne  to  whom 
ill  have  h(!en 
the  sMiiU!  to 
IT  of  trunks 
'li  to  respon 
k-eiy  of  such 
icise.l  acts  of 
'taple  V.  ll'iK- 
111 


e  been  dellv- 
e  l)ill  of  .such 
ijierly  as  his 
his  own  use, 
1  (he  ground 
IhUi. 


their  projierty,  which  he  was  converting  to  his  own  use.  Held,  that 
the  fact  (if  sliowii)  that  defendant  believed,  wlien  he  converted  the 
property,  tliai  lie  would  he  able  to  p;iy,  and  iulende<l  to  pay,  the  (jwners 
for  it  wlien  he  should  be  (jquired  to  account  for  it,  docs  not  relieve  the 
act  of  its  fraudulent  and  ciiniinal  character.     Stale  s.  Leieham,         117 

8.  The  foregoing  facts  being  proven,  the  court  did  not  err  in  refusing  to 
charge  that  if  defer.. lant  so  construed  the  written  contract  (with  his 
employers)  that  he  honestly  supposed  he  hud  a  right  to  .sell  machines 
and  use  the  proceeds,  and  afterwards  account  to  the  owners;  and  if,  in 
the  transaction,  he  acted  under  that  impression  and  iu  good  faith,  the 
jury  should  not  find  him  guilty.        .  Ibid, 

•.  Nor  was  it  error  to  instruct  the  jury,  in  such  a  case,  that  if,  at  the  time 
alleged,  defendant  sold  any  of  said  machines,  or  turned  them  out 
as  security  for  the  purpose  of  paying  his  own  indebtedness,  without 
the  consent  of  his  principals,  he  was  guilty  as  charged  in  the  first  count 
of  the  information.  Ibid. 

10.  The  case  distinguished  from  Com.  v.   Stearns,  2  Met.,  343,  and  Com.  t. 

Lil)hey,  11  Id.,  64,  decided  under  a  like  statute,  by  the  fact  that  there 
was  here  a  special  agency,  and  that  the  right  of  property  and  the  pos- 
session remained  in  the  principals.  Ibid. 

11.  Indictment. 

Under  a  statute  asjainst  embezzlement,  which  provides  that  "whoever 
embezzles,  etc.,  *  *  *  shall  be  deemed  guilty  of  larceny,  an  indict- 
ment charging  simjily  an  ordinary  larceny  is  InsutHcient,  and  no  con- 
viction of  an  offense  under  the  statute  can  lawfully  be  had.  Kribn  v. 
People,  114 

12.  Same. 

An  indictment,  under  such  a  statute,  must  set  out  the  facts  constituting 
the  embezzlement,  and  then  aver  that  so  the  defendant  committed  ihe 
larceny.  ^^^ 

13.  Notliing  which  was  larceny  at  common  law  is  included  within  the  statutes 

against  embezzlement.  tm* 

And  see  Notes,  pp.  110  and  114 


it  claimed  to 
o  pledLic  the 
iuht,  if  made 
owner  of  her 
he  is  entithnl 


if  the  owners 
1  to  sell  ujion 
•hines  for  llin 
1  with  which, 
ay,  an  indehl- 
(1  I'.cld  jiosses- 
that  the  latter 
meed.  The^e 
if  defendant's 
ilh  them,  and 
the  evidence 
uadiiues  were 


ESCAPE. 

1.  Illegal  warrant. 

If  the  warrant  by  virtue  of  which  an  officer  receives  a  prisoner  is  void, 
because  the  inairistrate  had  no  jurisdiction  to  issue  the  warrant  on  the 
affidavit  made  iiefore  him,  the  officer  is  not  liable  to  prosecution  for 
voluntarily  pi-riniltin!;  the  prisoner  to  e^^cape  out  of  his  custody, 
although  the  warrant  is  regular  on  its  face.  A  warrant  regular  on  its 
face,  although  illegally  issut'd,  is  a  protection  to  the  officer  who  has  no 
knowledge  of  the  illegality  of  its  issue,  but  such  a  warrant  imposes  no 
duty  upon  him.     Iloush  v.  People,  465 

2.  Same. 

No  warrant  can  legally  be  issued  until  a  sworn  complaint  is  made  charging 
that  a  crime  has  been  committed,  and  thai  there  is  probably  cause  to 
suspect  that  the  pensim  charged  wilh  the  crime  committed  it. 


Ibid. 


8.  The  affidavit  on  which  the  warrant  issued  in  this  case  is  held  fatally 


defective. 


Ibid. 


664 


INDEX. 


4.  i)a  the  trial  of  a  prosecution  for  aiiliinr  to  escape  from  custody,  the  fact  of 
ciisfofly  is  for  the  jury,  and  so,  also,  is  the  Icirulity  of  tliat  particular 
custody.  The  court  should  ao((U;iinl  tla-  jury  with  Ihe  needful  ruU^a  of 
law,  to  enabU;  them  to  disiimruish  iciial  fruni  iljeijal  custody,  and  let 

,  them  make  the  application  thereof  to  the  fads  in  evidence,     llaber- 

ihim  B.  Stdte,  45 

6.  It  is  error  to  change  that  the  custody  was'  h.-ijal  if  the  state's  evidence  is 
true,  or  that  if  the  jury  believe  the  evidin(!e  for  the  state,  they  must 
find  a  verdict  of  guilty.  Ibid. 

6.  Custody  by  a  private  person  after  a  li^jral  arrest  without  warrant,  becomes 

illegal  if  protracted  for  an  uiiriasonalile  time,  and  wliether  the  time 
was  reasonable  or  unreasonable  is  a  (|Uestioii  i'or  the  jury,  uiid<T  proper 
instruelions  from  the  court  as  to  the  promptness  which  the  law  exa(;tB 
in  conveying  the  parly  arrested  before  a  magistrate.  I  hid. 

7.  Cruel  treatment  of  his  pri.soner  by  the  captor  may   be  considered  (where 

there  is  evidimee  on  Ihe  pointUo  ilUistrate  the  purpose  of  the  arrcd 
and  the  txmn  fide.i  of  the  euslody.  Ibid. 

8.  Custody  voluntarily  assumed  by  a  private  person  without  warrant,  may  be 

lawfully  lirminated  with  his  consent,  by  tinning  the  prisoner  loose, 
especiaily  if  I  lie  latter  be  not  guilty.  Ibdl. 

9.  To  make  Hit!  violation  of  a  lawful  custody  criminal,  its  legal  char.ieter 

need  not  be  positively  kM;)wn  to  tin;  ofTetider,  if  he  has  good  resLson  to 
believe  it,  or  is  grossly  negligent  in  the  use  of  means  to  inform  him- 
self. Jhid. 

10.  Actual  guilt  of  the  person  held  in  custody  for  felony  by  a  private  person 

without  warrant,  is  not  indi^pi'nsuble  to  the  Iciriility  of  the  custody, 
and,  therefore,  neither  his  conviction  nor  his  ])roscciiij()n  is  a  prcreipii- 
sile  to  convicting  another  for  assisting  him  to  c-^ciipc.  'The  ipn  siinii  of 
his  guilt  is  not  otherwise  involved  than  as  throwing  light  upon  lh(! 
motive  and  lawfulness  of  his  arrest,  but  for  thai  piirpo.se  it  is  open  to 
the  consideration  of  the  jury.  J  bid. 

And  see  HcHiciuB. 


EXTRADITION. 

1.  The  respondent  was  extraditiMl  from  (Canada,  under  the  Ashburton  treaty 

of  lHt'2,  to  lie  trie<l  on  three  "separate  in(licliiicnt<  for  forj-crv  On  two 
of  these  he  was  tried  and  actpiittcd,  and  the  third  was  disniissid.  It 
was  then  souglit  to  try  him  for  enibrzzlcmcnt,  there  bciiiLr  i'  en  |>iiii!iii.^' 
against  him  indielments  for  einliezzlement  an<l  uttcriiiL''  foiLred  paper. 
On  motion  of  the  resi)ondenl,  based  on  atlidavil  siiowing  the  taei>  of 
the  extradition,  it  was  held  that  he  was  entitlcil  to  be  discharfi'ii  from 
arre>t  and  afforded  a  reasonable  o]>porluniiy  to  r<'turn  to  Ciinad^ 
before  any  proceedings  could  be  taki^n  against  him  c>m  an>  charge  not 
named  in  the  warrant  of  extradition.     Cornmonirealth  v.  Iliiwrn,         'JOl 

2.  Fufjitireit  from  justice. 

Although,  under  the  constitution,rOf  the  United  Stales  and  the  act  of  con- 
gress, a  stale  is  only  bou^id  ;io  sinrender  a  Umit;v(!  from  justice  for 
whom  a  re(]uisition  has  been  issued  by  the  governor  of  a  sister  stale, 
yet  the  le^'islatun!,  ui)on  principle-;  of  connty,  nn»v  provide  for  the 
arrest  ami  detention  of  .such  fugitive  before  the  re()uisition  has  arrived, 
and  may  ai'company  the  act  for  the  arrest  by  as  many  conditions  (favor 
able  to  the  alh-ged  fugitive)  as  to  his  mode  of  arre«^l  ami  examination  as 
it  may  see  tit,  and  such  act  must  be  strictly  complied  with,  hlx  part* 
Rosenblatt,  315 

And  see  Note,  p.  218. 


INDEX. 


66:. 


EXPEllT  WITNESS. 

A  physician  cannot  lawfully  be  compcUt'd  t<t  testify  as  an  export  to  tnattera 
of  tiicdieal  science,  iijr:iin>-t  liis  oljjection  uiili's-;  eoinpinsiiteii  by  & 
proper  lee,  ;is  for  u  prolVssioiial  opiiiinii:  iim!  hi-  idiHil  lo  icsiify  us  to 
miiliers  of  meiiic;il  scii'iiee,  willioiii  siicii  eoinifM-iitii.ii,  ciiniiot  be 
punisli.d  us  ;i  eoiileinpl.  Uiimijc,  C.  J.,  uud  Nuii.ACii,  J.,  diu- 
sealing.     Uttchinaii  c.  i^tufc,  Jgfj; 

But  see  Note,  p.  187. 


EVIDENCE. 

1  General  prinripfei*. 
The  order  iti  wliicli  evidence  sJi.ill  Ije  L'iven  is  within  the  discretion  of  the 
trial  coiiri,  ;iiid  ividence  which  is  iiiconipiMent  when  iidinitte(l  will  not 
be  a  mciiini  lor  rcv.rsil,  if  it  is  al'lcrsviirds  made  conipelenl.  by  its 
connection  willi  evidence  given  at  a  later  stage  of  the  trial.  Carroll  e. 
Commoiiwmtth,  980 

2.  The  prosecution  cannot  show  in  the  prisoner  a  tendency  or  disposition  to 
commit  lh((  crime  with  which  he  is  cliarjied.     SUUe  t.  Lapaf/e,  506 

3  The  prosecution  (cannot  give  in  evidence  other  criminal  acts  of  the  pris- 
oner, unless  they  are  so  connected  by  circumstances  with  tlie  particular 
crime  in  issue  as  tiiat  tin;  proof  of  one  fact  with  its  circunistiuiee.s  h.is 
somi'  beariiiir  ujioii  tlie  issue  on  trial  other  than  .such  as  is  expressed  in 
the  foreL^oiui;  proposition.  Ibid. 

4.  Even  lhoui,di  the  court  permits  an  illegal  or  improper  question  to  i)e  put  to 
witness,  ai^ainst  the  objection  of  the  respondent,  the  respondent  is  not 
injured,  and  cannot  comidain,  if  the  answer  is  one  which  dois  not  i)re- 
judice  him.     Arclur  v.  Slate,  404    • 

6.  Where  theie  is  a  direct  contradiction  between  two  witnesses,  it  is  for  the 

jury  to  determine  wliich  is  worthy  of  belief,  and  their  (lelermination 
ought  not  to  be  lightly  disturbed.     Jolumm  v.  People,  396 

B.  The  prosecution  have  a  right  to  give  in  evidence  against  the  respondent 
tliat  be  i)iirtieipated  in  malting  arrangements  for  one  of  the  common- 
wealth's witiu'sses  to  leave  the  place  at  which  the  trial  was  in  progress. 
ColUiix  V.  Commmiceallh,  282 

7.  The  court  is  not  bound  to  instnict  the  jury  that  they  must  wh(  I'y  reject 

the  testimony  of  a  witness  who  has  sworn  falsely  in  one  material  parti- 
cular, even  though  such  false  swearing  was  willful.  The  matter  of  his 
credibility  as  to  other  matters  is  for  tlie  jury.     White  v.  tiUite,  454 

8.  Ovilty  knowledge. 

When  guilty  knowledge  is  an  ingredient  of  the  oflfense,  there  need  not 
usually  be  direct  i)roof  of  actual,  jwsitive  knowledge,  but  tlie  jury  may 
infer  It  from  suspicious  circumstances,  such  as  appiirently  intentional 
neglect  to  tnake  in((uiry  before  engaging  in  a  doubtful  transaction. 

The  fact  of  guilly  kae.wledgc  should  be  left  to  the  jury  to  deleriniae  from 
all  the  circumstances.     Banker  v.  People,  79 

9.  Cross-examination  of  respondent. 

Where  the  prisoner  was  on  trial  for  the  murder  of  one  Brawn,  and  a  wit- 
ness in  liis  own  behalf;  luld,  that  on  cross-e.xamiuation  it  was  not 
competent  for  the  attorney  for  the  state  to  ask  him,  against  objection, 


666 


INDEX. 


|pi> 


"Did  you  as«ault  Mr.  Fairer  on  the  Caluis  road,  while  drnnli?"  and 
similar  questions  as  to  assaults  upon  other  parlies  wiiile  drunk,  the 
matter  not  lieini^'  relevant  to  his  creiiibility  as  a  witness,  or  competent 
as  suhstantive  evidence.     State  v.  Carson,  58 

And  see  Note,  p.  60. 

10.  Aeeompline. 

Where  two  jointly  indicted  are  awarded  separate  trials,  cither  is  a  compe- 
tent witness  for  liie  state  ai^ainst  the  other,  before  he  has  been  <!onvii;ted 
or  acquitted,  and  it  is  not  neces.sary  to  euter  a  nolle  pruHcqui  to  render 
him  comiuitcnt.     Carroll  «.  State,  424 

11.  Same. 

It  is  no  ohjention  to  the  competency  of  an  accomplice  who  is  called  as  a 
witness  for  the  state  that  he  has  been  assured  by  the  jud<j;e  and  district 
attorney  that  so  Iou<r  as  they  remain  in  office  his  testimony  sliall  not  be 
used  at^ainst  him.     White  v.  State,  4')4 

12.  Same. 

The  credibility  of  an  accomplice  is  a  matter  solely  for  the  jury.  His  testi- 
mony is  to  he  weii;hed  with  great  caution,  jealousy  and  distrust,  but 
the  jury  are  to  judw  how  f.ir  liis  testimony  has  been  corroborated,  and 
they  may  believe  him  witliout  corroboration,  Ibid. 

IS.  Before  a  witness  testifies  in  chief,  counsel  for  the  resjiondent  has  the  riijht 
to  e.vainine  her  for  the  i)ur|>ose  of  showing  that  she  is  not  coiupeti'nt  to 
testify,  for  want  of  intellectual  capacity,  and  it  is  error  to  deny  liim 
this  privilege  on  the  groiuil  that  the  judge  has  in  another  case  inve.-ti 
gat(!d  the  matter  ami  determineil  her  to  be  competent.  I  hid. 

14.  Ordinarilj',  counsel  ought  to  iwive  the  right  to  confer  in  private,  before  the 
trial,  witli  the  witnesses  they  propose  to  call.  And  where  the  circum- 
stances are  such  Hint  this  riiiht  can  be  exercised  only  by  the  consent  of 
the  court,  it  is  error  to  refuse  it.  Ibid. 

And  see  Admissions  and  Coni'Kssions,  A ic^knt  Witness,  Dying  Declaka- 

TION8,   IIUHBAND  aud  WlKK,  LiQUOK  SKLMNU. 


FALSK   PllETEN'SKS. 


(. .  (".  ■ 


W-A^, 


\    \ 


1.  Wfuit  ron-ititiiteii  tfie  ojfriise. 

In  a  prosecution  for  conspiracy  to  obtain  money  I'y  false  pretenses.  If  it 
api>ears  iluil  the  transaction  (ni  the  part  of  the  person  frrmi  whom  the 
money  was  obtained,  or  from  whom  ilelVnilanls  conspired  lo  obtain  it, 
woidd  iiave  been  uii/airful  in  case  tiie  i ('presentations  of  the  defendants 
luid  be(!n  <rM«;,  there  can  be  no  ('onviction.     Slate  i\  ('rowleij,  8:| 

2.  Thus,  where  money  was  paiil  by  .\.  to  certain  conspirators  to  get  posses- 

sion of  bo.xes,  talst'ly  repi(scnle(l  by  the  l.'itter  to  eont.iiii  counterfeit 
money,  with  a  view  to  iilteriiiii;  the  sume.  and  a  tiirllier'-um  was  paid 
to  one  of  the  confederalev,  wlio  Wiis  a  coiislalile,  to  prevent  a  thnal. 
encil  arii'st  of  .\.  lor  bavin'.''  sueli  counteiTeit  money  in  povscsvjnn  (ihe 
boxes  in  fai'l  coniainiiur  only  saw-<lii.'-i).  the  conl'eiler;ites  cannot  be  con- 
victed, upon  tliesi,'  fuels,  ol'  a  conspiracy  lo  obtain  money  ol  A.  iij)on 
false  pretenses.  Ibid. 

8  WhtMc,  by  the  agreement  'letween  the  prosecutor  and  the  defendant,  the 
defeiiilant  gets  no  title  to  ilie  properly  which  is  delivered  to  him  on  the 
faith  of  the  alleged  false  preienses,  Hie  crime  ot  obtaining  property  by 
false  pretenses  is  not  committed.     State  v.  Andernon,  100 


mk  ?  "  and 

druuk,  the 

competeut 

58 


IS  a  compe- 

u  to  rciultT 
424 


called  as  a 

md  district 

^liall  not  lie 

4'>4 


His  testi- 

islnist,  hut 

orated,  and 

Ibid. 

asllie  riirlit 

JllipCt'Mll    tf) 

)  deny  Idtn 

use  invest  i- 

Ihid. 

\  before  tiie 

;lie  eireum- 

j  consent  of 

Ibid. 

i  Declaua- 


tcnsos,  If  it 

I  wlioin  the 

lo  ohtain  it, 

defeudiinta 

iret  posses 
cotintcrfcit 
ni  was  [laid 
nt  a  threat 
;si'ssion  (the 
inol  l)e  con- 
ul  A.  upon 
I  hid,. 

reiidant,  the 

I  liini  on  the 

property  by 

100 


■^ 


IMUEX. 


667 


4  It  is  not  necessary,  to  constitute  the  offense  of  obtaining  srooils  by  false 
pretenses,  tiiat  the  owner  has  l)een  induced  to  jiart  with  liis  property 
solely  and  entirely  by  pietciises  wliieh  are  false;  nor  need  tlie  iireieiises 
be  the  paramount  cause  ol'  the  delivery  to  tiie  prisoner.  It  is  ;-Mtlicienl, 
if  they  are  a  part  of  the  moving-  cause,  and,  witlumt  them,  the  defrauded 
party  would  not  have  parted  with  the  property.     In  re  Snyder,         228 

6.  A.  pretense  which  is  false  when  made,  but  true  by  the  act  of  the  person 

making  tiie  same  when  the  prosecutor  relitts  tiiereon  and  parts  with  his 
property,  is  not  a  false  pretense  within  the  statute.  Ibid. 

«.  To  hold  a  jierson  for  trial  who  is  charged  with  obtainin;?  money  or  prop- 
erty by  false  pretenses,  it  must  appear  tliat  the  pretenes  relied  upon 
relate  to  a  past  event  or  to  some  present  exislinp;  fact,  and  not  to  some- 
thing to  happen  in  the  future.     A  mere  promise  is  not  sufficient.    Ibid. 

7.  A  false  statement  that  a  house  and  lot  were  unincumbircd,  when,  in  fact, 

they  were  subject  to  a  recorded  mortsriiire.  is  not  a  false  pretense  within 
the  statute,  liecause  the  party  defraudetl  had  the  means  of  delecting  it 
at  hand,  and  ndght  have  protected  himself  by  the  exercise  of  common 
prudence.     Commonwealth  v.  Grady,  105 

8.  :^tatcments  as  to  the  value  of  lots,  or  that  they  are  "nicely  located,"  are 

matters  of  opinion,  and  not  facts,  and,  therefore,  not  within  the  statute. 
People  V.  Jacobs,  103 

9.  [ndirtinint. 

An  indictment  for  obtaining  goods  by  false  pretenses  is  sufficient,  if  it  allege 
that  the  gdi  (Is  weie  obtained  liy  the  defemlant  by  means  of  the  false 
pretenses,  and  \v  ilh  the  frauduient  intent  particularly  stated,  without 
other  averment  that  the  owner  relied  upon  them,  and  was  induced 
thereby  to  p.irt  with  the  goods.     Norrinv.  State,  85 

10.  In  an  informatirin  for  false  pretenses,  it  is  not  necessary  to  allege  in  express 

words  th:it  the  ]iariy  defrauded  replied  \ipon  the  false  rejiresentntions 
niade,  but  this  is  a  nece-sary  implication  from  the  allegation  that  he 
was  in  iueed  by  the  false  representations  to  part  with  ids  money.   People 

11.  If  any  of  the  false  representations  charged  in  the  information  are  matters 

of  ni)ini(>ii,  and  imm.iterial,  a  char.ge  that  if  the  prosecutor  jiarted  with 
his  nK.iiiy  ri'i\  iiiLT  >i|ii>ii  any  of  tiie  false  representations  alleged,  the 
(ilT(  Use  is  ci  lupleie,  without  discriminating  between  those  that  are 
nuiterial  and  tli'se  that  art!  imuiaterial,  is  erroneous.  Ibid. 

12  [n  section  twelve  of  the  crimes  act,  as  amended  February  "1, 187;i,  declar- 
iuir  "that  if  any  peison,  by  any  false  pretense  or  pri'ti  uses,  shall  obtain 
from  any  ollu  rpersoii,"  et'c. ;  the  wonl  "  itersoii,"  in  tlie  latter  phrase, 
includes  arliticial  as  well  us  natural  persons,     .\orrisv.  State,  86 

111,     IjOCilh'tll  of  iTi'lIK'. 

Where  .\.,  Iiv  fidse  iireteiisescontiiined  in  a  letter  sent  liy  mail,  procures  the 

owner  of  ir Is  lo  deliver  them  to  a  desi^niiled  coninioii  carrier  in  one 

count V,  consigned  lo  the  writer  .n  iinnllier  cuunly,  llw  olTense  of  obtain- 
ing goiids  by  lalse  pretenses  is  comiilete  in  the  former  county,  and  the 
olVen.se  rnu.sl  be  pmsecuied  ili<  rein.  Ibid. 

See  Lauci'.nv,  and  see  N<ni;s.  jip.  05,  102,  IO(t  and  342, 


I 


1 


•  'lii  I 


4 ' 

IJli 


;{; 


A 


I; 
.1 


ii 


'  iii> 


668 


INDEX, 


FOH(iERY. 

1.  TJie  forged  inMrtiment.  ^ 

The  fiilsc  miikiiiir,  with  friindiilciit  intent,  of  an  instrument  in  fho  creneral 
form  of  ii  biiiikchfck,  rc(iiicMtin.!i;  Ilic  bunk  to  "pay  VV.  T.  C,  Jr.,  or 
bearer,  one  (illy  ilollurs  in  ciiiTcnl  funds,"  constitutes  tlie  crime  of  for- 
gery, under  section  1,  cli.  lG(i,  \\.  S.     Siatti  o.  (Joule,  149 

2.  At  the  left  upper  corner  of  the  clieck  were  the  fl^ures  $150.00.      Whether 

this  would  authorize  the  court  to  supply  the  words  "  Iniiidrcd  ;ind  " 
between  "one"  and  "lifly"  in  the  bociy  of  the  instrument,  que  re ;  but 
the  check  at  least  calls  for  the  pavment  of  fifty  dollars,  Ibi<i. 


8.   The  clieck  is  apparently  a  valid  obiii^ation;  would  create  a  liability  if  L'en- 
uine,  and,  thenffore,  had  a  teiidciicy  to  defraud.  I  lid 


Ft  * 
I'*  I 


>         1   i  V 


4.  An  indictment  cliaririni^  that  defendant  forired,  with  intent  to  delraml.  a 
written  instruiiUMit  as  follows:  "  Due  is.'i."i.  Askew  llrotliers,"  .Mean 
inir  thereby  that  eijrht  <lollars  and  twe;ily-livc  cents  were  due  to  him 
from  Askew  brothers,  wlii<'li  was  a  |)artiievsbip  eom|)oseil  of  certain 
8i)ecitied  individvials,  is  not  demurrabh!,  and  (rhari,a's  loiL^cry  in  the 
Bceond  dei^ree,  under  section  3702  of  tlie  Itevised  Code.  Ri  nii'n-t  t. 
8Uite,  141 

8.  A  forced  instrument  was  in  the  follnwins^  terms:  "Akkon,  May  2,  1874. 
Mr.  Schrocder:  I'lcase  let  Mr.  I'ioi>;wick  have  liis  clothes,  and  I  will 
hohl  his  pay  till  next  Tuesday,  ami  will  see  that  paid  for.  J.  Mm. ion." 
llclil,  that  such  instrument  may  ln'  dcMMibed  in  an  indictment  as  an 
"order  for  the  delivery  of  iioods  and  ciniltils,"  within  the  meuniiii;  of 
the  statute.     Vliidxxtir  i'.  Shiti.  153 

6.  The  word  "  value"  in  section  OlJof  the  code  of  ciiininal  proc'ibire.  is  used 

in  that  section  in  the  sense  of  "ellect,"  "  import,"  and  not  in  the  sen--e 
of  "  worth  in  money."  Ibid. 

7.  On  the  trial  of  a  defendant.  char!i:e(l  in  an  indiolmeiit  with  ha\  imr  fortred 

such  instrument,  where  evidence  has  been  sriven  tending  to -ln'U  that 
the  defendant  was  not  present  when  the  forLTil  in-liiinicni  wa^  niade, 
it  is  error  for  the  court  to  refuse  to  insinict  tiie  jury  thai  if  ii  bi-  I'niind 
by  them  tiial  tlie  dct'endaiil  ua.--  not  so  present,  he  caniinl  lie  ((Muicliil 
of  tlie  olVen.se  cliarircd  in  the  indictment,  or  to  inslruci  ijic  jury  ili.it  if 
it  be  found  that  the  rorired  in^lrunn'ut  was  made  by  amilher  pei-nn.  hr 
till' l)roe\iremenl  of  the  dcreiidanl,  allhouiih  he  was  nul  pri--i  iil  at  tin.' 
foriicry,  ho  mijjlit  be  convicted  of  the  ollense  char^icd  in  the 
indictment,  IbUL. 

8.  f}>r;/eri/  hi/  usiiif/  <m  innoivnf  aqeut. 

Wliere  .V,  for  the  purpose  of  delriiudinjj  B,  prooureci  0,  an  innocent  [larty. 
1o  sijn  the  name  of  jlto  a  promissor\  note,  by  falsely  represent  ini;  that 
(!  was  authori/.ed  by  1{  »o  to  do.     Held,  that  A  was  guilty  of  forj^ery 
Gl'ir/'iry  r.  Stitle,  ]Mi 

9.  Varinnee. 

The  indictment  was  for  foru'intr  a  promissorv  note  whicli,  as  set  forth  in  the 
indictment.  c'iMlaine(l  these  words:  "'hie  drawiM's  ami  indor.sers  sever- 
ally waive  presentment  tor  pa\  ineiil.  protest,  ditd  nulii;  uf  jivolent,"  etc. 
The  note  olfcnil  in  c\idencc  ilid  not  contain  the  words  "and  notice  of 
protest.'  Ill  III,  a  fatal  variance,  and  that  llie  note  was  not  admis-ible 
in  evidence.     Shurlei/  i>,  Ulate,  108 


Tf 


INDEX. 


669 


lip  troneral 

C,  Jr.,  or 

ime  of  for- 

140 

Whfther 

i(lri'(i  !iiui  " 

qiieir  ;  hut 

Ibid. 


lily  if  L't-n- 
/  I4U. 

I  (Icfrrtuil,  a 
rs. "    Mi'aii 

IllC    to    tlilll 

I  of  certain 

LTciv  in  the 

A'(  iiihrrt  t. 

141 

lay  2,  1874. 
and   I   will 

Ml' 11, Kit." 

niciit  as  an 

nu'aiiliiir  of 

153 

nrt'.  is  used 

in  till'  M'nse 

Ibid. 

\\\\ii  fortrcd 
(I  --liiiw  tiial 

\va-<  iiiadc. 

il  III'  fiiiind 

If  i'(IM\  ictl'il 

juiy  that  if 

r  i)ii-iiii.  Iiy 

'•■•I  III  at   tin; 

Lii'd    in    tliu 

IbUl. 


xi'tit  party, 

scnlini;  thai 

of  forgery, 

140 


FORMER  JEOPARDY. 

1.  Defendant,  having  been  triwl  and  convicted,  but  the  convifti,)n  beinpf  set 
aside  because  he  was  entitled  to  an  acquittal  on  the  evidnnce,  cannot 
again  be  put  in  jeopardy  of  punishinent  lor  the  same  olleuse  (Const., 
art.  1,  sec.  8),  and  the  trial  court  is,  therefore,  advi.sed  to  arrest  judg- 
ment and  discharge  him  from  custody.     Slate  v.  Moon,  ^ 

a.  Where  a  person  indicted  for  murder  is  found  guilty  of  murder  in  the 
second  degree,  this  verdict  is,  in  legal  effect,  an  acquittal  of  the  cliarge 
of  murder  in  the  first  degree.  If  he  is  grant'td  a  new  trial  he  cannot, 
on  the  second  trial,  be  convicted  of  murder  in  the  first  degree.  John- 
ton  V.  State,  ^. 

t.  The  constitutional  provision  that  defendant  .shall  not  be  twice  put  in  jeo- 
pardy for  the  same  offense,  does  not  operote  to  prevent  a  new  trial  of  a 
charge  on  which  the  defendant  has  been  once  convicted,  after  a  new 
trial  has  heen  granted  on  his  own  motion.  Ibid. 

A.  W  here  a  plea  of  former  acquittal  is  defective  in  form,  the  plea  may  be 
aided  by  the  record,  and  should  he  sustained  if  the  record  of  the  court 
in  the  same  case  contains  everything  necessary  to  sustain  it.  Ibid. 

6.  The  defendant,  being, on  trial  for  a  violation  of  the  Sunday  law,  proved 

that  be  had  hefore  heen  convicted  on  his  plea  of  guilty  before  a  justice 
of  the  peace,  and  fined  one  dollar,  for  the  idtMilical  offen.se  tlien  on 
trial.  Helit,  that  tliis  was  a  complete  bar  to  the  pending  prosecution. 
Wilkinson  v.  State,  596 

«.  To  an  indictment  for  shooting  with  intent  to  kill  a  Imman  being,  the 
respondent  pleaded  former  acquittal.  It  appeared,  from  the  plea,  that 
he  had  lieen  formerly  prosecuted  for  maliciously  shooting  and  wound- 
ing a  horse,  on  which  cliMrge  he  had  been  acquitted,  and  the  plea 
alleged  the  identity  of  the  two  otTenses.  Jletit,  that  a  demurrer  to  this 
plea  w;is  properly  sustained.  The  two  offenses  are  essentially  different, 
and  couhl  not  be;  legally  identical,  although  both  offenses  might  liave 
been  committed  in  one  and  the  same  transaction.  Slate  v.  IIoi-ne- 
man,  427 

7.  A  conviction  under  a  city  ordinance  for  "disturbing  the  peace,"  or  for 

"  tighliug  in  the  strei^'s,"  cannot  be  pleaded  in  bar  to  an  indictment  in 
\\n'.  eiicuit  court  for  the  assaidt  and  battery  conunitted  at  the  same  lime. 
Tlie  two  offenses  are  not  identical.     State  v.  Sly,  51 

8.  A  conviction  for  simple  larceny  of  a  hat  (of  the  value  of  four  dollars)  is  a 

bar  to  an  indictment  for  larceny  of  the  same  from  a  shop,  the  stealing 
in  both  cases  being  one  and  the  samt*.     State  v.  WHen,  621 

8.  If  the  jury  come  into  cinirt  and  render  a  venlict  of  guilty,  and  are  dis- 
chargt'd.  in  the  absence  of  the  pri.soncr.  who  is  in  the  custody  of  an 
officer  in  another  room,  the  pri-mier  is  entiilcd  to  a  new  trial,  but  he 
1b  not  entitled  to  a  linal  discharge.     State  i\  Jlai/n,  630 


m 


■ill 


!.l 


forth  in  tliu 
orsers  sever- 
/irntest,"  etc, 
lid  notice  of 
i|  ailuds'ibiti 


10.  Tlie  discharge  of  a  person  chargc^d  with  felony  on  his  j'xamination  before 
Bcominitling  magistnile,  is  no  bur  lo  a  .second  e.vaminalion  before  Iho 
same  or  a  ililVereiit  magistrate,  on  another  complaint  diarging  the  same 
offense.     Hj:  parte  (larnt,  618 

8eo  Lakceny;  and  sec  Noti-s,  pp.  58  and  67. 


■';:  ! 


\:^ 


670 


INDEX. 


'.y 


19]    i- 

Sir 


FORNICATION. 

1.  It  is  not  in  violation  of  tlie  constitution  of  the  United  States  to  punisli  with 
greater  severity  fornication  and  iidultt;ry  between  pcsrsons  of  different 
races  than  between  persona  of  tlie  same  race.     Ford  v.  State,  161 

3.  On  tlie  trial  of  an  indictment  for  fornication,  it  devolves  upon  tlie  prose- 
cution to  prove  that  tlie  respondents  are  unmarried.  In  tiic  absence  of 
any  evidence  on  tlie  subject,  tlie  law  presumes  tliat  a  mim  and  woman 
openly  living  and  cohabiting  together  are  lawfully  married.  I'errilnrji 
V.  Whiteomb,  159 

8.  The  Indiana  statute,  whicii  provides  "  tliat  crimes  and  misdemeanors  shall 
be  defined,"  etc,  is  rciiealcd  pro  fdiilo  hy  w  later  statute,  prcMriiiini^  a 
pimishment  for  a  crime  wliich  it  does  not  dcliiie,  and  tlieicforc  an 
indictment  founded  uiiou  a  statute  punisliini^  "open  and  notorious 
adultery  or  fornication"  is  good,  althougli  tlie  statute  does  not  detine 
the  crime.     Uood  v.  Stale,  l(i5 


4  Tho  courts  of  Utah  have  no  jurisdiction  to  grant  a  divorce  between  r 
dents  and  citizens  of  one  of  tiie  United  btates.  neltlier  of  wliom  i 
resident  of  Utah  at  tlie  time  tlie  divorce  proceedings  ate  liad. 


resl- 
a 

Ibid. 


5.  Fornication,  at  the  common  law,  is  sexual  intercourse  between  a  man, 

married  or  single,  and  an  unmarried  woman.  Ibid. 

6.  Adultery,  at  the  common  law,  is  sexual  intercourse  between  a  married 

woman  and  a  man,  married  or  single,  other  than  lier  husband.       Ibid. 

7.  The  provision  in  the  constitution  of  the  United  States,  that  "full  laith  and 

credit  shall  be  given  in  each  stat(^  to  tlu;  public  ads,  records  iiiul  judi- 
cial proceedings  of  everj'  other  state,"  does  not  include  jud'.niienis  and 
decrees  which  show  upon  their  face  that  the  courts  leudcrliig  them  Imd 
no  jurisdiction  in  the  premises.  J  hid. 

8.  The  respondent  had  procured  a  divorce;  in  Utah,  which  was  void  for  want 

of  jurisdiction,  Relying  upon  this  divorce  he  married  and  openly 
cohabited  with  another  woman  in  Indiana.  Held,  that  he  was  guilty 
of  o])eu  and  notorious  fornication,  and  that  his  reliance  on  the  Utah 
divorce  was  no  defense,  ho  being  conclusively  presumed  to  know  the 
law.  Ibid. 


HABEAS  CORPUS. 

1.  lies  adjudirnfa. 

Where  a  jierson  confined  by  virtue  of  a  sentence  upon  conviction  for  crime 

is  discliariicd  from  such  continement  on  /mhaiH  c<iri>ii.'<,  by  a  jinlui'  hav- 
ing juiisdiclimi  to  deicrinine  the  matter,  on  the  ground  of  the  allcLicd 
ilk'gidity  of  the  sentence,  the  discli.iigc  being  a  judgment  in  favor  of 
personal  liberty,  is  final  and  coucluaive,     J^Ji  parte  JiU,  217 

2,  Same. 

In  such  a  case  the  Supreme  Court  has  no  jurisdiction  to  reexamine  the 
grounds  on  whicli  a  discharge  was  granted,  and  if  the  defendant  ia 
again  arrc.sted  on  the  same  conviction,  the  Supreme  Court  will  release 
liiiii  on  /i<il)iii\  corpus,  on  the  gionnd  thai  his  right  to  be  set  at  liberty 
under  that  conviction  is  rex  ailjudicdla.  Ibid. 

8.   To  he  admitted  to  hail. 
A  parly  indicted  for  murder  is  entitled,  upon  proper  appi  "ntion,  to  a  writ 
of  habcd.s  corpus  for  the  purpose  ol'  showing  such  facts  as  may  satisfy 
tho  court  that  tho  proof  ia  not  strong,  or  the  presumption  ia  not  great, 


IJSDKJL 


671 


inish  with 

t  different 

161 

the  prose- 

iibseru'.e  of 

ui  woman 

Territory 

159 

xnors  shall 

fiiforc  an 

notorious 

not  (Ictine 

l(i5 

;wcen  rcsl- 

ivhoin  ii'  a 

Ibid. 

en  a  man. 
Ibid. 

a  married 
(1.       Ibid. 

1  laitli  and 
i  and  judi- 
'Miicnts  and 
;  tlicin  had 
Ibid. 

id  for  want 
ind  openly 
was  gnilty 
n  the  Utah 
>  know  the 
Ibid, 


1  for  crime 

juilui'  liav- 

llu;  allciri'd 

in  fuvor  of 

217 


xainine  the 
cfcndiiiit  is 
will  rcii'aso 
st  at  lilHTty 
Ibid. 


n,  to  n  writ 

may  satisfy 
iH  not  great, 


that  he  is  guilty  of  a  capital  offense,  and  that  he  is  entitled  to  b^  dis- 
charged on  bail.  The  indictment  charging  a  capital  offense  is  not  con- 
clusive upon  such  application,  under  the  statute,  as  to  the  character  of 
the  Icsiimony.     Ilolley  v.  State,  250 

4  Practice  on. 

Under  section  677  of  the  Kansas  Code,  Gen.  Stat.  1868,  p.  763,  the  judge  or 
court  issuing  a  writ  of  habem  corpus  on  a  petition  complaining  that  the 
person  in  whose  behalf  tlie  writ  is  applied  for  is  restrained  of  his  liberty 
•without  probable  cause,  may,  even  in  case  there  is  no  defect  in  the 
charge  or  process,  summon  the  prosecuting  witness,  investigate  the 
criminal  ciiarge,  and  discharge,  let  to  bail,  or  recommit  the  prisoner, 
as  may  be  just  and  legal.     In  re  Snyder,  228 

6.  On  the  hearing  and  determination  of  a  cause  arising  upon  a  writ  of  haheat 
corpus,  before  a  ]\u\<xt'  or  cotirt  investigating  the  criminal  eliarge  aiiainst 
a  pers(m  commitleil  by  an  examining  magistrate  for  the  offense  of  hav- 
ing obtained  money  or  property  by  false  pretenses,  the  jjroseeutor, 
"v'-en  examined  as  a  witness,  may  testify  that  he  Ixdieved  the  pretenses, 
and,  confiding  in  their  truth,  was  induced  thereby  to  part  with  his 
money  or  property.  Ibid. 

6.  Where  denied. 

Where  the  facts  stated  in  a  petition  for  a  wi-it  of  habeas  corpus  and  the 
papers  thereto  annexed,  if  established,  will  not  warrant  the  discharge 
of  the  prisoner,  the  writ  will  be  denied.     Petition  of  Semler,  242 

7.  Punctions  of  writ. 

The  writ  of  hnbms  rorpns  is  not  designed  to  perform  the  office  of  an  appeal 
or  writ  of  error,  and  cannot  be  resorted  to  for  the  purpose  of  r(!viewing 
orders  or  judiinieiils  wliieii  are  merely  erroneous,  made  or  rendered  l)y 
a  court  whicii  had  jurisdiction  of  the  subject  matter  and  of  flie 
person.  Ibid. 

8.  Thus,  one  who  is  imprisoned  in  default  of  bail,  by  order  of  a  circuit  court 

of  this  stale,  in  wiiich  a  criminal  information  is  pending  against  him 
for  embi/zlemeni  of  moneys  in  his  possession  as  coimty  treasurer,  will 
not  be  discharged  by  this  court  upon  habeas  corpus,  on  the  ground  tliat 
the  information  is  insuflicient  to  charge  him  with  any  offense,  and  that 
the  circuit  court  erred  in  refusing  to  quash  it  for  that  reason.  Ibid. 

0.  Where  the  petitioner  also  alleges  that,  upon  a  complaint  subsequently 
made  before  a  magistrate!,  he  was  lield  to  bail  and  gave  the  bail  required, 
and  that  the  otleiise  thus  complained  of  was  the  same  as  that  descrilied 
in  the  information  previously  tiled,  but  this  court,  upon  inspecting  such 
complaint  and  other  i^apers  annexed,  cannot  assume  that  the  olleii<e 
charged  is  tlie  saiin',  it  (h  iiics  the  writ,  with  a  sugucslion  that  the  cir- 
cuit court,  on  the  prixiiur's  application  for  thai  purpose,  should 
iniiuire  into  the  fact,  and.  upon  finding  it  to  be  as  alleged,  should  grant 
the  proper  reliei'  iu  respect  to  bail.  llfiit 

And  see  Notk,  p.  227. 


HOMICIDE. 

1.  In  n  case  where  some  of  the  evidence  tended  to  show  that  the  wound 
inflictcil  by  the  respondent  ujion  llio  deceased  was  not  necessarily  fatal, 
but  that  by  negle<'l  of  the  direitionsof  the  physician  in  chariie  maggots 
got  into  the  wound,  causing  inflammation  of  the  bowels,  from  which 
UiO  wounded  person  died,  a  request  to  charge  thut  "if  the  jury  find 


": 


M 


^  ! 


i 


fl* 


672  INDEX. 

that  the  wound  inflicted  by  the  defendant  was  not  of  itself  mortal,  but 
thronuh  nojrlijienco  or  want  of  proper  treatment  became  so  and  termin- 
ated ialiilly,  and  tlitit  neglect  or  want  of  proper  treatment  was  the 
immediate  cause  of  the  (leath  of  tlie  deceased,  and  not  the  wound 
itself,  tliey  must  acquit  the  defendant,"  wsis  held  properly  refused. 
Kee  r.  ,S/„l,;  263 

8.  In  such  a  ease,  it  is  proper  to  cliarjre  the  jury  that  "if  the  jury  believe, 
from  the  evidence,  tliat  flie  deceased,  witliin  the  space  of  a  year  and  a 
day  fiom  the  intlictlon  of  tlic  wound,  died  from  son»e  (lisease  or  dis- 
ord<'r  produced  l)v  said  wounii,  inflicted  l)y  tli<!  voluntary  MCt  of  the 
defendant,  wlien  not  in  daiiui  r  of  tile  or  linil)  from  the  deceased,  then 
they  will  lind  the  (IciVnilant  .ifuilty  as  clnirj^ed."  Ibid. 

8.  Held,  that  there  was  no  error  in  cliarffinsr  that  "if  the  jury  believe,  from 
the  cvidi^nce,  that  the  defendant  willfully  and  unlawfully  inflicted 
upon  the  deceased  a  mortal  or  dauuerous  woiind,  ami  from  tliat  wound 
and  other  airirravaliuL.'  causes,  operatini^  upon  or  caused  by  said  wound, 
the  deceased  died,  they  slioidd  lind  the  defendant  guilty,  and  the 
defendant  (cannot,  umler  the  law,  shelter  himself  l)y  a  plea  of 
erroneous  treatment  of  the  deceased,  either  from  his  physicians  or 
nurses."  Ibid. 

4.  New-born  infant — /nilipiiKfcnf  life. 

An  infant,  aliliouiih  fully  delivered,  cannot  be  considered  in  law  a  human 
being  and  llie  subject  of  homicide  until  life,  independent  of  tlie  motlier, 
exists;  and  the  life  of  the  infant  is  iu)t  independent,  in  the  eyes  of  the 
law,  until  an  inde{)endcnt  circulation  has  become  established.  IState  v. 
Winthrop,  274 

5.  Degree. 

To  constitute  the  crime  of  murder  in  the  first  degree,  deliberation  and  pre- 
meditation m\ist  be  proven,  and  an  instruction  to  tlie  jury,  defining 
murder  in  the  first  degree,  whidi  omits  these  elements,  is  ernnieous: 
Sintfv.  Foster,  61  Mo.,  548;  State  v.  Lam,  M  .Mo..  lUi).  Hut  where  all 
the  evidence  .sliows  that  the  killing  was  delilierate  and  premeditated, 
insanity  ijeini;  tlie  only  delense  set  up,  the  error  does  not  i)rejudice  the 
pri.soner,  and  is  not  ground  for  reversal.     JSlalr  v.  Krin;/,  3iy 


•'(■ 


1 

I 

-I  ^   . 


8.  (t  apjieared  that  the  defendant,  intending  merely  to  frighten  the  deceased, 
diselianred  a  r^  volver  at  licr  and  intlieled  a  mortal  wound.  I'lie  revol- 
ver had  one  loiid  in  it,  liut  the  deleiidant  ii.i.l  reason  to  Itelicve,  and  did 
believe,  that  it  would  not  go  otf  Jfild,  that  on  such  Caels  no  jury 
would  i)(!  warranted  in  finding  that  a  man  of  ordinary  iirudeiice  could 
60  conduct  hlinseif,  and  that  a  i'e(|iiesl  to  cliarge,  Ijused  on  that  assiinip- 
tiou,  was  projierly  refused.     iStat';  v.  llardie,  826 

7.  The  court  chartred  the  jury  as  follows;     "And  in  this  ca.se  I  submit  to  you 

to  liiiii  the  facts  of  recklessness  and  carelessness  under  the  evidence!;  and 
if  you  lind  that  the  death  of  the  parly  was  occasioned  through  the  reck- 
lessness and  carelessness  of  the  il<  I'eiidaiil,  then  you  should  convict  him 
(i.  e.,  <if  manslau'ihter).  and,  if  not,  you  should  acejuit.  And  by  this  I 
do  not  mean  llial  defcniiant  is  to  be  held  to  the  highest  degree  of  care 
and  prudence  in  haiulling  a  dangerous  and  deadly  weapon,  luit  only 
such  care  as  a  reasonably  prudent  ni.'Ui  should  ami  ought  to  use  under 
like  circuuisiances.  and  if  he  did  not  u--e  ^u^h  care  he  sliould  be  cou- 
victcd,  otherwise  he  should  lie  ac(|uitte(l."  Ilehl,  that  this  instruction 
was  (luite  aa  favorable  as  the  defendant  was  entitled  to.  Ibid. 

8.  Belf-dffeme. 

The  ancient  do(;trine  which  rc(piired  an  assailed  person,  under  all  clrcuni- 
■tanceu,  to  retreat  as  far  iw  he  could  with  .safety,  and  avoid,  if  he  pos- 


INDEX. 


T'm 


lortal,  but 
d  termin- 

I,  WHS  the 

!in  wound 

iT  rel'used. 

263 

y  believe, 
car  and  a 
asp  or  d  is- 
n't of  the 
used,  tlicn 
Ibid. 

ieve,  from 
/  inflicted 
lat  wound 
id  wound, 
',  and  the 
1  pica  of 
r8ician8  or 
Ibid. 


V  a  human 
lie  mother, 
iyes  of  tlie 
1,  iState  V. 
274 


)n  and  pr«- 

y.  (lifiiiing 

erroneous: 

wliere  ail 

iieditaled, 

judlce  the 

81U 


deeeased, 

1'lie  revol- 

he,  and  did 

ts  no  jury 

nei'  could 

at  assuinp- 

;i26 

mit  to  you 

Icnee;  and 

1  the  ri'ck- 

oiiviet  liini 

1  liy  I  Mm  I 

ree  of  cart! 

lint  only 

use  under 

li  he  eou- 

in.struclion 

Ibid. 


all  circuin- 
if  ho  poa- 


sihly  could,  the  necessity  of  taking  human  life  in  defense  of  his  own 
life  or  in  the  protection  of  his  person  from  great  bodily  harm,  iias  been 
greatly  modifleil  by  modern  deeisicnis.  The  weij^ht  of  authority  now 
is,  tliat  when  a  person,  being  without  fault  in  a  place  where  he  lins  a 
right  to  be,  is  violently  assaulted,  he  may,  without  retnating,  repel 
force  by  force,  and  if,  in  the  reasonabh;  exercise  of  his  right  of  seli- 
defense,  his  assailant  is  killed,  he  is  justifiable.   Itunpan  v.  State,       iSlK 

©.  ( »n  the  facts  of  this  case  it  is  considered  by  the  court  that  there  was  no 
evidence  tending  to  show  that  it  was  the  duty  of  the  accused  to  retreat 
before  defending  himself.  Ibid. 

10.  The  respondent  was  in  a  shed,  the  right  of  possession  to  which  was  in 

dispute  betwei^n  himself  and  the  deceased.  Angry  words  having 
passed  between  the  i)arties,  the  deceased  advanced ^vith  an  ax  on  his 
shouhkr  to  the  shed  in  a  threatening  manner.  Tlie  defendant  warned 
the  deceased  not  to  enter,  but  without  heeding  this  warning,  the 
deceased  advanced  to  the  eve  of  the  shed,  almost  if  not  quite  within 
striking  distance  of  the  deceased,  when  the  latter  shot  him  with  a  pistol 
and  kiiled  him.  Held,  that  if  the  respondent  was  lawfully  in  the  shed 
attending  to  his  business,  and  witliout  blame,  he  was  not  bound  to 
retreat  even  though  he  might  have  done  so  with  safety,  bvit  might 
•  defend  lumself  where  he  was,  even  to  the  taking  of  life,  if  necessary. 
Erwiii  v.  suite,  2V)\ 

11.  Where  a  man  pursuing  his  lawfid  business  and  without  any  fault  or  blame 

on  his  own  part,  in  feloniously  assault(!(l,  he  is  not  bound  to  retreat  even 
thouirh  he  may  do  so  with  safety,  but  he  may  defend  himself  where  lie 
is,  anil  if  iu  his  own  defense  he  necessarily  kills  the  felonious  assaulter, 
the  killing  is  justifiable  homicide.  If  the  assaulted  party  is  himself  at 
fault,  he  is  bound  to  retreat  as  far  as  he  can  with  safety,  but  if,  having 
•  retreated  as  far  as  he  can  with  safety,  he  necessarily  kills  Ids  adversary 
to  save  himself  from  death  or  grievous  bodily  harm,  the  killing  is 
excusable  homicide.  Ibid. 

12.  Where  the  cinumstances  of  the  killing  are  not  disclosed  by  the  evidence 

bciyond  the  fact  that  it  was  done  with  a  deadly  weaium,  the  law  pre- 
Buiues  malice  from  the  use  of  the  deadly  weapon;  but  where  all  the 
faits  ami  (•ireunlstlmee^  attenilaid  upoti  the  killing  are  disclosed  by  the 
evi<leii(;e,  the  inlVrence  of  malice  is  to  be  drawn,  if  at  all,  by  the  jury 
from  all  the  circumstances,  of  which  the  use  of  the  deadly  weapon  is 
one.  1  /'id. 

13.  Where  the  evidence  is  conflicting,  and  a  part  of  It  tends  to  establish  justi- 

flable  honiieide  in  self-defense,  a  charge  tliat,  "in  this  case,  the  law 
raises  a  presumptiim  of  malice  from  the  use  of  a  deadly  weapon,"  is 
erroneous.  Ibid. 

14.  An  instruction  to  the  jury,  from  which  they  might  infer  that  the  prisoner 

was  guilty  ol'  murder  iii  the  lirsl  degree,  If  he  lireil  with  a  willfui.  dclili- 
■>rate  and"  premeditated  intent  to  take  life,  even  though  the  defendant 
had  a  reasonable  belief  of  bodily  harm,  and  iu:ting  on  that  belief  and 
appreiieiision  of  danger  fired  the  fatal  shot,  is  erroneous.  Pixtorin.''  e. 
Commonwealth,  284 

15.  Moliir. 

In  a  trial  for  homicide,  any  evidence  which  fairly  tends  to  prove  a  con- 
Hjiiraey  between  the  prisoners  (o  cnimnit  murder,  and  a  motive  for  the 
murder,  is  admissible,  although  not  lending  ditectly  to  prove  the  mur- 
der charged,  in  a  case  where  such  testimotiy  tends  to  corroborate  and 
render  more  creilible  the  testimony  tending  directly  to  prove  the  mur- 
der chiuged.     Carroll  1).  Commoiiwetdth,  280 

Vol.  I1.-43 


iv 


G74 


INDEX 


*     IT 


16.  Threats  by  deeeaaed. 

L'ircuiiistiUKcs  temling  to  show  hostility  toward  the  defendant,  on  the  part 
of  tlic  deceased,  and  threats  made  by  the  deceased  against  tlie  defend- 
ant, but  not  ccmmuuicated  toliim;  field,  properly  excluded  under  the 
evidence  in  this  case.     State  v.  Elliott,  823 

17.  Constable  killing  prisoner  to  prevent  his  escape. 

X  constable  has  no  right  to  kill  a  prisoner,  in  custody  for  a  misdemeanor,  to 
prevent  his  escape;  and,  if  he  does  so,  he  will  be  guilty  of  murder  or 
manslaughter,  as  the  case  may  be.     lieneau  v.  State,  684 

And  see  Dying  Declaii.\tions  and  Note,  p.  273. 


HOUSE  OF  ILL  FAME. 

In  order  to  render  the  defondant.irxiilty  of  keejiing  a  house  of  ill-fame,  it 
must  appear  that  he  has  some  interest  in  it  as  suoli,  or  that  Ik;  iiartiei- 
pates,  or  is  authorized  to  partieipate  in  some  way  in  its  nianagcnient. 
Proof  that  he  is  the  owner  and  lessor  of  the  liouse,  and  tiiat  he  is  fre- 
quenllv  there,  and  stays  there  Sundays,  is  not  sutticieut.  State  v. 
Pearsdll,  380 

HUSBAND  AND  WIFE. 

The  wife  of  a  respondent  is  not  a  competent  witness  for  a  co-respondent, 
who  is  being  tried  at  the  same  time.     Territory  v.  Paul,  333 


INCEST. 

1.  Tnccst  is  not  an  indictable  offense  at  common  law.  and  whore  there  is  no 

statute  against  it,  it  is  not  a  criminal  offense.     Stut'  r.  lucsler,  331 

2.  in  Illinois,  a  bare  solicitation  to  commit  incest  is  not  indictable.     Such  a 

solicitation  is  not  an  attempt  within  the  meaning  of  the  statute.     Cox 
«.  People,  329 

INSANITY. 


1.  'ITie  contents  of  letters  written  by  the  prisoner  maybe  given  in  evidence 

to  establish  his  sanity,  where  insanity  is  set  up  as  a  defense.     StaU  v. 
Kring,  313 

2.  U  seems  that  moral,  ascontra-disting.iislied  from  mental,  insanity,  is  insuf- 

ficient to  relieve  a  party  from  resi)onsibility  for  crime.  Ibid. 


INTENT. 

See  MAYiiKst 

JUUY. 


1,  General  principJra. 
It  is  error  to  charge  the  jury  that  they  are  in  no  sense  judges  of  the  law. 
llabemhani  v.  State,  45 


INDEX. 


675 


1  the  part 
e  deftnd- 
tlie 
822 


luder 


leanor,  to 

aurder  or 

624 


ill-faim',  it 
he  iiiirlici- 
iiageinfnt. 
t  he  is  fre- 
,.  Utate  V. 
380 


2.  An  erroneous  overruling  of  a  challenge  for  cause.  Is  not  reversible  error, 
unless  the  iirisoncr  exhausts  his  peremptory  challenges,  and  is  thus 
prevented  from  getting  rid  of  the  obnoxious  juror  by  a  perempiiiry 
challeuge.     Sfnte'v.  EUiotl,  323 

8.  Where  a  juror  wlio  should  have  been  i ejected  for  cause  is  afterwards  per- 
emptorily clialk'iiged,  and  a  full  panel  of  impartial  and  acceptable 
jurors  is  obtained  before  the  respondent  has  exhausted  his  peremptory 
challeniies,  the  error  does  not  prejudice  him  and  is  no  ground  for 
reversal.     Erwin  v.  State,  251 

4i  AVTiere  the  court  has  improperly  overruled  a  challenge  for  cause,  the  error 
is  ground  for  reversal,  nolwitiistanding  the  juror  is  afterwards  chal- 
lenged peremptorily  by  the  (iefeiidaut,"  if  the  ilefendanc  exhausts  his 
pereniplory  eliallenges,  because  the  defendant  has  tlnreby  been 
deprived  of  his  riglit  to  pereiiiptorily  challenge  one  of  the  jurors  who 
sat  upon  the  tiial.     State  v.  Brown,  423 

6.  A  defendant,  in  a  criminal  prosecution,  cannot  waive  his  right  to  a  legal 
jury  of  twelve  men,  and  a  trial  and  conviction  by  less  than  that  num- 
l)er,  althougli  by  his  consent,  is  illegal.     Allen  v.  State,  441 


espondent, 
332 


there  is  no 

;i;  331 

e.  Such  a 
atute.  fax 
829 


6.  A  defen<lant  in  a  criminal  action  may,  with  the  consent  of  the  state  and 

court,  waive  a  statute  enacted  for  ids  benefit,  or  his  right  to  be  tried  by 
a  full  jury  of  twelve.     State  v.  Kaufman,  626 

7.  The  jury  ought  not  to  be  unfairly  or  unreasonably  urged  or  coerced  by 

the  trial  judge  to  an  agreement.  Such  undue  urging  by  the  trial  judge 
tends  to  prmhice  comi)romise  verdicts,  which,  in  criminal  trials,  ought 
not  to  be  tolerated.  Ikld,  that  the  language  of  the  trial  judge,  in  this 
case,  tended  to  exert  an  undue  intluence  and  i)ressure  upon  the  jiu'v  to 
reach  an  agreement,  and  ])robal)iy  did  exert  such  an  intluence,  sinc-e  the 
jury  found  Uie  defendant  guilty  of  assault  only,  in  a  ease  where  it  was 
clear  he  siiould  either  have  been  convicted  of  assault  with  intent  to 
commit  murder,  or  wholly  acquitted.     State  v.  Bybee,  449 

8.  Where  the  jury  are  taken  by  order  of  the  court  to  view  the  locality  of  the 

crime,  the  prisoner  has  a  right  to  accompany  them,  and  should  be  taken 
with  them,  uidess  he  chooses  to  waive  his  privilege.  (See  JJenton  v. 
State,  30  Ark.,  328,  to  the  same  ellect.)     W/tite  v.  State,  454 


tT 


H 


in  evidence 

;e.     Statt  v. 
313 

ty,  is  insuf- 
Ibid. 


9.  That  a  juror,  after  being  charged  with  a  criminal  case,  was  allowed  to 

separate  from  the  jury,  is  ground  of  new  trial,  unless  it  bo  atlirmiilively 
shown  tiiat  lie  had  no  eommunieation  with  any  one  upon  the  suliject 
of  the  trial,  either  direetlN .  by  conversation,  or  indirectly,  by  overhear- 
ing the  observation  of  others.     Daniel  v.  State,  421 

10.  llowevor  imi)roiK'rly  jurors  may  talk  about  a  case  in  their  deliberations 

upon  it,  and  discuss  things  outside  (^f  the  testimony,  it  would  be  erect- 
ing a  standard  too  high,  iind  would  result  in  a  defeat  of  justice,  to  set 
aside  their  verdict  because  they  will  do  so.     Taj/lor  v.  Sl<tte,  13 


of  the  law. 
45 


11.  The  fact  that  the  jury,  pending  the  trial,  were  taken  by  the  sheriff  into  a 

saloon,  and  treate(l  by  him  to  a  drink  of  .spirituous  litiuor,  is  not,  of 
itself,  sulUcient  ground  for  setting  aside  the  verdict.     Keev,  State,    203 

12.  That  while  taking  refreshments  at  a  hotel,  pending  the  trial,  two  of  the 

jury,  being  colored  men,  ale  in  a  different  room  from  the  others,  is  not 
ground  for  a  new  trial.  Ibid. 


J 


676 


INDEX 


18.  Imparfia!  Jury, 

On  a  trial  for  homicide,  a  Juror  who  had  formed  or  expressed  an  opinion 
that  llie  deceased  was  killed  by  the  prisoner,  notliinir  else  appearing,  is 
ineoinpetcnt  to  sit  as  a  juror,  and,  on  a  challenge  fi)r  cause,  should  be 
rejected.     State  v.  Brown,  428 

14.  Same. 

A  juror  who  stated,  on  liis  examination  on  the  voir  (fire,  that  his  Impres- 
sion was  that  the  respondent  was  more  guilt}-  than  a  co-respondent 
whom  he  knew  had  already  been  convicted;  that  it  was  merely  an 
impression,  founded  on  no  facts,  and  that  his  mind  was  perfectly  free 
to  act  justly;  that  his  impression  did  not  amount  to  nn  opinion,  and 
was  not  such  as  would  in  the  least  intluence  his  verdict,  was  held  com- 
petent to  sit.     Whik  c.  State,  454 

18.  Same. 

The  trial  judge  may  properly  himself  examine  jurors  as  to  their  compe- 
tency, an(l,  on  a  murder  trial,  has  a  right  to  ask  the  jurors  if  they  are 
opposed  to  capital  punishment.  J  bid. 

!<!.  It  is  not  a  legal  objection  to  a  juror,  in  the  absence  of  any  statute  requiring 
an  educational  qualitication,  that  he  can  neither  read  nor  write.      Ibid. 

17.  The  mere  fact  that  a  juror  swears  that  he  thinks  the  evidence  might  remove 

the  opinion  hi'  has  formed  in  answer  to  a  (piestion  wliellier  lie  could 
render  an  impartial  verdict,  does  not  make  him  a  com|)etent  juror,  ilu 
mu.'it  swear  unequivocally  and  positively,  and  the  court  must  be  able  to 
determine  him  to  be  competent.  On  the  facts  of  this  case,  a  juror  who 
was  received  was  held  to  be  clearly  incompetent.     Carrol/  v.  Slate,     424 

18.  Under  the  Ohio  statute,  it  is  error  to  overrule  a  challenge  for  cause  to  a 

juror  who  states  that  he  has  formed  and  expressed  an  ojiiniim  as  to  the 
guilt  or  innocence  of  the  respondent,  from  rending  a  report  of  the  tes- 
timony of  the  %vitnesses  given  on  a  former  trial,  even  liiongh  he  stales 
also  that  he  feels  himself  able,  notwithstanding  such  opinion,  to  render 
an  impartial  verdict  upon  the  law  and  evidence.     Erwin,  v.  State,      251 

And  see  Note,  p.  202. 


|"ii>? 


LAIttKNY. 

1.  Wfiat  is  laveny. 

WhiTc  two  c<)n'i))ire  together  to  fraudulently  obtain  the  money  of  the  pro.se- 
eutoi-,  iinil.  ill  piirsiianee  of  the  consj)irat:y,  make  believe  to  throw- dice 
with  (ine  iiiioilirr  for  money,  and  one  of  them,  apparently  losing, 
per>ii.i(les  the  jirosecutor  to  let  him  have  his  money  to  bet  on  the  g!inie, 
on  the  faNe  assurance  that  he  is  sure  to  win  and  will  give  i(  haek  iiiniie- 
diately,  ami  if  he  loses  he  '"iis  a  check  for  !^r)()()  in  his  pot  ket  which  he 
will  get  cashed  and  repay  the  money,  and  the  money  is  nppariiitly  lost, 
soon  after  which  the  confederates  (li.sappcar,  the  two  thus  conspiring 
an!  guilty  of  larceny.     Loornis  v,  I'lople,  W^ 

2.  When  a  contract  for  the  loan  of  money  is  induced  by  fraud  and  false  pre- 

tenses of  the  borrower,  and  the  lenJler,  in  performance  of  the  contract, 
delivers  certain  bank-bills,  without  any  exiieetation  that  the  same  bills 
will  be  rettirned  in  payment,  the  borrower  is  guilty  of  obtaining  money 
by  false  pretenses,  but  is  not  guilty  of  the  crime  of  laiceiiv.  KcHni/ij 
V.  >■/-»/(■,  "  96 

8.  In  the  absence  of  a  statute,  the  thief  cannot  be  convicted  of  larcenv  in 
Ohio,  for  bringing  into  Ohio  property  stolen  by  him  in  Canada.  Stan- 
lei/  V.  Slate,      '  349 

i.  Dog, 

In  Ohio,  as  at  the  common  law,  a  dog  is  not  the  subject  of  larceny.  (See 
Note,  p.  340.)    State  v.  Lymva,  338 


^I'ii 


T 


! 


.    INDEX. 


I  opinion 

parinff,  is 

hould  be 

428 


8  impres- 
(spondcnt 
n<roly  iin 
ectly  frio 
nion,  and 
lield  coni- 
451 


fir  compe- 

f  they  lire 

J  bid. 

!  requiring 
te.      Ibid. 

:ht  remove 
r  lie  coiiUi 
juror,  lie 
!)(•  able  to 
juror  who 
Slate,     424 

cmise  to  (I 
n  ii.s  to  tl>e 

of  tlu'  tea- 
h  lie  stnit'H 

,  10  render 
itate,      251 


f  tlio  |>ros<^- 
lliroW'dico 
itly  losing, 
1  llic  pmie, 
i;i(k  iiiune- 
t  wliicli  he 
ivi'iitly  lost, 
conspirini; 
:{4.'S 

d  false  pro- 
he  contriict, 
siiine  bills 
ning  money 

IV.       KclhtijiJ 

96 

liircenv  in 
lada.     ^'^^»l- 
349 


rceny.    (See 


6.    Lost  good*. 

hi  a  case  where  the  defendant  is  changed  with  the  larceny  of  lost  iroods, 
tlic  defendant  should  be  convicted,  if  it  appears  thii',  when  he  found 
tliem,  be  intended  to  appropriate  them  to  bis  own  us<;,  having  reason- 
able grounds  for  believing,  at  the  time  of  the  finding,  that  the  owner 
could  be  found.     Baker  v.  State,  S)i7 

6.  S'eaUrig  coffin. 

It  is  larceny,  at  common  law,  to  steal  a  coffin  in  which  a  body  is  interred, 
and  Missouri  statutes,  punishing  disinterring  and  receiving  tlie  dead 
botly,  and  opening  the  grave  for  the  purpose  of  taking  up  the  body  or 
stealing  the  colUn,  or  anything  buried  with  the  deceased,  in  no  wise 
abrogates  or  ailects  the  common  law  rule.     Slate  v.  Doepke.  6.S8 

7.  Ill  Buch  a  case  it  is  proper  for  the  indictment  to  allege  the  cottiu  to  be  the 

property  ^f  the  one  who  furnished  it  for  the  burial.  Ibid. 

8.  \'alue. 

Where  the  value  of  the  article  stolen  is  material  in  a  prosecution  for  lar- 
ceny, its  value  is  to  be  fixed  by  its  market  price,  and  not  by  wliat  it  is 
worth  to  its  owner,  or  for  the  i)articular  purpose  for  which  it  is  used. 
It  is  to  be  regarded  as  worth  just  what  it  would  letch  in  the  open 
marliet.  /  buL 

9.  Fjoreeny  by  bailee. 

Where  the  defendants  received  an  accepted  order  for  so  many  barrels  of 
crude  petroleum,  which,  at  the  time,  was  in  the  tanks  and  pipes  of  the 
Union  pipe  line  company,  mixed  with  petroleum  belonging  to  many 
others,  the  defendants  receiving  the  accepted  order  on  an  agreement  to 
Btore  th(?  petroleum  represented  by  the  order  at  a  speciticd  rate  per 
month,  the  delivery  of  the  order  is  a  delivery  of  the  petroleum  suffi- 
cient to  constitute  the  defendants'  bailees,  and  if  by  means  of  the  order 
they  draw  and  receive  the  petroleum  from  the  pipe  line  company,  and 
convert  it  to  their  own  use,  they  are  guilty  of  larceny  as  bailees. 
Ifnti'Jiinnon  v.  Commonwealth,  362 

10.  Where  a  person  steals  articles  belonging  to  different  persons  at  the  same 

time  and  place,  so  that  the  whole  ccmstilules  but  one  transaction,  he  has 
committed  but  one  larceny,  and,  after  trial  and  conviction  for  stealing 
a  part  of  the  property,  the  conviction  may  be  pleaded  in  bar  of  a 
second  indictment,  charging  the  larceny  of  the  other  property  taken  at 
the  same  tim(^  and  place.      WUnon  v.  State,  356 

11.  .\n  indictment  for  simple  larceny  in  stealing  two  hogs  at  the  same  time  and 

pla<'e,  thoiigii  alleging  that  one  is  the  i)roperly  of  one  person,  and  the 
other  of  another,  covers  but  one  transaction  and  charges  but  oneollense, 
and  jmlgment  thereon  will  not  be  arrested.     Iconic  v.  Slalf,  344 

12.  I'roof  tlial  defendant  stole  one  of  the  hogs  is  sullicieut  to  convict  under 

such  an  indictment.  Ibid 

13.  /Svidi'iice. 

In  prosecutions  for  larceny,  if  the  owner  of  the  property  alleged  to  have 
been  stolen  is  known,  nnd  his  attendance  as  a  witness  can  l)e  procured, 
bis  testimony  that  tlie  property  was  stolen  is  iiuli^peusabh;  to  a  convic- 
tion:    S/ati'r.    )/')/•(//,  "3  W  is. ,  4!)4.     Slate  v.  Momi,  64 

14.  In  this  case,  the  prosecution  having  failed  to  procure  the  attendance,  as  a 

witness,  of  tlie  owner  nf  the  properly  alleged  to  have  been  stolen,  or  to 
show  anyelTort  to  procure  his  attendance,  and  the  secondary  evideni-e 
of  the  fact,  admitted  by  the  court,  being  very  weak  and  inconclusive, 
this  court  (to  which  the  cause  was  cerlitied  after  a  verdict  of  uuilty) 
advises  the  trial  court  that  the  evidence  is  insutiicient  to  uphold  tlie 
verdict.  I^id. 


•■1 


678 


INDKX. 


15.  Recent  ponHci^ion. 
The  iinsum  lion  or  infiTcnce  of  irnill  arisipE^  from  the  exclusive  posnossion 
of  stolr.,  piop.Tty,  recently  afler  the  liirei'ny,  is  puiely  ii  question  of 
fact  for  tile  jury  and  it  is  error  to  eharvre  that.  fron\  such  reeent  pos- 
session, if  not  salisriK^torily  explaiiu'd  or  ai'eoiuitud  for  l>y  the  defend- 
ant, the  law  j>resumes  the  i^uilt  of  tlie  defeiKlaiit.     SiiUth  u.  ,Sliitf,     372 

K!.  Iruiiftiiiint — /)< scrip/ion  of'  inoiici/. 

ki\  indietinent  lor  the  larceny  of  money,  which  simply  charircs  the  stealing 
of  "one  liiuidred  and  thirty  dollars,"  without  any  specific  description 
of  the  kind  of  nionev,  is  had  on  niolion  in  arrest  of  judgment.  Barton 
V.  Slat,:  840 

And  see  Note,  p.  ;!.">;  Fokmer  Jeopahdy. 


LETTINf}  FOR  ILLKUAL  PURPOSES. 

1.  Under  a  statute  punishinir  the  owner  of  premises  for  knowinirly  permit- 

tiiifr  I  hem  to  he  used  or  (xrcupieil  for  the  purpose  of  prost.tution,  and 
conferriniT  on  the  lessor  jxiwer  to  avoid  the  lease  and  re-enter  whent  the 
lessee  does  use  the  premises  for  such  ptirpose,  proof  that  the  lessee  does 
use  the  picmises  for  such  purpose,  and  that  the  lessor,  havinir  knowl- 
edire  of  (he  fact,  takes  no  steps  to  avnid  the  lease,  will  not  jii-itify  his 
conviction  undei'  the  statute,  in  u  (!ase  wh'.tre  the  evidiaice  shows  that 
the  lessor  oriifinally  leased  the  premises  without  any  knowled^je  or 
intent  that  they  would  ho  unlawfully  used  by  the  lessee.  Croltoti  ». 
Stote,  3T8 

2.  Under  .such  a  statute,  it  is  not  necessary  that  the  indictment  should  speci- 

fically aver  that  the  premises  were,  in  fact,  used  for  purpo.ses  of 
prostitution.  Ibid. 

'A.  Under  a  statute  which  punishes  one  who  aufhorncit  or  fiennits  premises  to 
he  used  for  the  >ale  of  inlo.xicatin;:?  li(piors,  the  lessor  is  not  LMiilly  if  he 
rented  the  pn^mises  for  a  lawfid  purpose,  not  knowinij  that  they  were  to 
he  u.sed  for  the  unlawful  ale  of  into.xicatini^  liquors,  althouL>'h  he  after- 
wards knew  that  they  were  so  used,  and  took  no  steps  to  prevent  tlieir 
continued  u.se  for  thilt  purpose.     State  v.  BalUngaU,  370 


LIBEL. 


1.  An  indictment  for  libel,  which  charjies  that  the  libel  is  "as  follows,"  and 

then  sets  it  forth  rerhnliin,  with  sulHcient  innuendoes,  alleges  the  libel 
with  sufflcient  certainty.     Ghiy  r.  People,  3S1 

2.  An  objection  made  in  the  Supreme  Court  that  the  libel  proven  is  variant 

fnmi  that  s(!t  forth  in  the  indictment,  will  not  be  considered  where  no 
such  obj(!Ction  is  made  in  the  court  below.  Jhul. 

3.  One  who  makes  to  a  newspaper  writer  the  statements  of  fact  on  which  a 

libel  is  based,  and,  after  the  article  is  in  type,  hears  the  proofs  read  and 
ftiHrms  its  truth  and  assents  to  its  publication,  is  as  guilty  of  libel  as 
though  he  had  written  and  published  the  article  him.s<'lf.  Jhid. 

4.  Criminal  linhilitji  of  puhlinfier  for  art  of  Ki'rninl. 

Upon  a  criminal  information  for  libel,  it  was  proved  that  the  three  defend- 
ants, the  proprietors  of  the  newspajier  it)  which  the  libel  iqipeared,  took 
an  active  part  in  the  management  of  the  paper,  but  had  given  a  ireiieral 
authority  io  a  competent  editor  to  publish  wlialevei'  he  thought  proper 
in  the  literary  part  of  it.     At  the  trial,  evidence  was  tendered  by  the 


INDEX. 


679 


posHPSsion 

lU'slioii  of 

(TCllt    pOS- 

lie  defend - 
Hdfe,     373 


le  stealing 

lesciipliou 

it.    Barton 

340 


rly  permit- 
lit  ion.  and 
■  where  tiie 
lessee  does 
ni:  kiiowl- 
ju-itify  his 
shows  that 
)wled}fe  or 
Oroltoti  V. 

ould  sjieei- 

urpo.M's  of 

Ibid. 

)remis(!s  to 
iruiliy  if  he 
liey  were  to 
ih\u'  aftcr- 
•eveat  their 

a7« 


llowH,"  and 

L'S  the  liliel 

381 

n  is  variant 

il  wheri^  no 

J  hut. 

on  which  a 

)fs  read  and 

'  of  lihi^l  as 

Ibid. 


iree  defend- 
jieareil,  look 
ell  il  ireiieral 
uuiit  proper 
ered  hy  the 


defendants  to  prove  that  the  libel  was  puhlished  without  their  author- 
ity, consent  or  knowledjre,  and  without  want  of  due  care  or  caution  on 
their  part,  within  the  nieanin.ir  of  0  and  7  Vict.,  chap,  9(»,  sec,  7.  The 
Judire  refused  to  hear  this  evidence,  and  directed  the  jury  that  tlie  sec- 
tion did  not  apjily,  Uion  a  rule  for  misdirection,  held,  hy  Cockhurn, 
C.  J.,  and  Lusii,  ,J.  (dissentieule  ^lellor,  .1.),  that,  notwithstanding  the 
authority  to  th(!  editor,  it  was  a  iiuestion  for  the  jury  whether  the  pro- 
tection i^iven  hy.tliis  section  applied  to  the  dcfeiidauts,  aad  that  there 
must  be  a  uew  trial.     Ryiua  o.  Uolbrook,  64.! 


LIQUOR  SELLING. 

1.  The  provisions  of  the  licjuor  law,  prohil)itins:  the  sale  of  liquor  without  a 
license,  cannot  hi;  evaded  hy  a  saloon  keeper's  customers  oiftanizing  a 
sham  association,  i>reteiidiiiir  to  buy  him  out  and  electing  him  treasurer, 
and  tlien  letting  him  carry  on  his  business  with  the  members  precisely 
as  he  did  liefore,  with  tlie  single  exception  that  the  so-called  members, 
instead  of  paying  cash  for  their  drinks,  purchase  tickets  at  a  dollar  a 
piece,  which  are  good  for  a  dollar's  worth  of  drinks,  which  tickets  arc 
punched  for  each  drink  had  on  them  until  the  ticket  is  exhausted. 
The  saloon  keeper,  not  having  a  license,  is  properly  convicted  under 
the  law.     Jlirharf  v.  I'mpte,  38.5 

S.  'ITie  evidence  against  the  respondent,  who  was  charged  with  selling  liquor 
without  a  license,  tended  to  show  that  he  sold  cigiiretles,  worth" from  a 
quarter  to  half  a  cent  each,  for  ten  cents  a  piece,  and  that  he  gave  a 
drink  of  wliisky  to  every  one  who  bought  a  cigarette.  He'd,  tliat  this 
evidence  fairly  tended  to  show  that  the  real  transaction  was  a  sale  of 
the  whisky,  and  that  it  was  for  the  jury  to  say  whether  or  not  the  pre- 
tended sale  of  the  cigarettes  was  not  a  mere  evasion  and  subterfuge, 
intended  to  cover  the  sale  of  the  whisky.     Arcluer  v.  Slate,  404 

8.  la  Buch  a  case  the  prosecution  have  a  riglit  to  press  an  unwilling  and  reluc- 
tant witness  with  seardiing  questions,  and  to  call  out  any  and  all  facts 
wiiich  have  any  tendency  to  throw  light  on  the  real  nature  of  the  trans- 
action. Ibid, 

4.  I  a  such  a  case  the  defendant  has  no  right  to  prove  that  in  other  cases  he 
had  treated  people  to  whisky  under  circumstances  that  did  not  consti- 
tute the  giving  of  the  whisky  a  sale;  or  that  he  had,  in  some  instances, 
refused  to  sell  whisky  either  directly  or  covertly.  Proving  that  he  had 
not  violated  the  law  on  other  occasions  would  have  no  tendency  to 
prove  that  he  had  not  violated  it  in  the  matter  for  which  he  was  being 
tried.  Ibid. 

C.  Evidence  of  similar  sales  of  cigarettes,  and  of  the  giving  of  whisky  in  con- 
nection therewith  on  other  occasions,  is  admissible  for  the  purpose  of 
explaining  the  transaction  in  question  in  this  case.  Ibid. 

6.  Where  it  appears  that  one  cliarged  with  selling  liquor  to  minors  was 

engaged  in  making  change  for  sales  made  by  others,  and  that  he  made 
"hange  on  the  very  sale  in  question,  he  is  ju.st  as  guilty  as  though  he 
nad  sold  the  licjuor  himself.     Johnson  v.  People,  396 

7.  In  order  to  constitute  an  unlawful  sale  of  li(]uor  to  a  minor,  under  the  Illi- 

nois statute,  it  is  not  necessary  that  the  respondent,  or  any  one  con- 
nected with  him,  should  be  the  keeper  of  a  dram-shop.  Ibid. 

8.  The  act,  title  "  Dram  Shops,"  whose  full  title  is,  "  An  act  to  provide  for 

the  licensing  of  and  again.st  the  evils  arising  from  the  sale  of  intoxi- 
cating liquors"  (U.  y.  of  111.,  1874,  p.  4;iS),  is  not  aimed  against,  and 
does  not  include  ordinary  acts  of  h().<i>itality.     Albrechtv.  Slate,        401 


11 


! 


680 


INDEX. 


9.  v.  brewer  who  gives  beer  to  a  jierson  wljo  comes  to  see  him  at  his  houso  on 

business,  is  not  liublc  under  the  (irovisions  of  section  six,  wliifli  pro 
vidcs  as  follows:     "  Wlioevcr,  hy  himself  or  liis  agent  or  servant,  .>*li.ill 
sell  or  j^ive  any  inti)xi<'atin,s^  liiiuor    *    »     *    (o  any   person   intoxi 
cated,     *     »     *    shall,   for  (!iu;li  otfense,  be  tiucd,"  etc.,  even  thoiii^li 
Buch  person  is  under  the  intiuence  of  licpior.  Ibid. 

But  see  Note,  p.  404.        ,^  , 

10.  Evidener. 

'I'lie  defendant,  being  a  licensed  saloon  keeper,  was  charged  with  unlaw- 
fully selling  liquor  to  a  hahituiil  drunkard.  The  only  evidence  against 
him  was  jiroof  of  a  single  unlawful  sale  by  his  clerk.  Udd,  that  this 
teslii  ;o,iv  wa-  insullleient  to  justify  a  conviction,  the  presiimption 
being  tiiat  tiie  clerk  had  authority  only  to  make  lawful  sales.  Slate  n. 
Mahoney,  408 


y  t 


11.  On  the  trial  of  the  respondent  for  being  a  common  seller  of  intoxicating 
licjuors,  a  charge  "  that  the  jury  could  infer  the  fact  of  sales  from  (tir- 
cumstances,  and  the  situation  of  the  respondent,  if  they  were  satisfied 
to  do  so,"  is  not  erroneous.     State  v.  Uynet,  Wi 


12.  ( )n  such  a  trial,  where  children  have  testified  to  going  to  the  defendant's 
shop  and  purchasing  liquor,  it  is  proper  to  admit  their  mother  to  testify 
that  they  had  been  sent  there  for  liquor,  had  been  furnished  with  money 
and  a  bottle,  and  had  gone  out  and  returned  with  the  liquor,  although 
she  did  not  herself  know  that  they  got  it  of  the  defeniiant.  Ibui. 

18.  On  a  prosecution  for  selling  liquor  to  a  person  in  tint  liabit  of  becoming 
intoxicated,  where  it  has  appeared  that  such  person  resides  in  the 
neighborhood  of  the  respondent,  and  that  he  is  in  the  habit  of  be<'om- 
ing  intoxicated,  the  stale  has  a  right  to  give  evidence  of  his  gcmeral 
reputation  in  the  neighborhood  in  that  regard,  for  the  purpose  of  prov- 
ing knowledge  of  that  habit  on  the  part  of  the  respondent.     Addiiut  v. 

State.,  sas 


\     '< 


14.    What  in  mult  liquor,  a  quettion  of  fact. 

Under  the  Maine  statute,  which  provides  that  ale,  porter,  strong  beer,  lager 
beer,  and  all  other  malt  liquors,  shall  be  considered  intoxicating  litjuorB 
within  the  meaning  of  the  act,  what  li(iuor.s  are  malt  liquors  within  the 
meaning  of  the  act,  is  a(iuestion  of  fact  for  the  jury,  and  not  of  law  for 
the  court.     State  o.  Stuir,  aUO 


15.    rndii'lini'iii. 

Under  :i  statute  imposing  a  penalty  for  the  sale  of  litpior  to  a  minor,  an 
indictment  cbaririni^  the  sale  of  liipior.  at  :i  certain  time  and  pliice,  to 
"ciTtain  minors,  the  names  of  whom  me  to  l!;f  i^rand  jurors  unknown," 
chill  ires  but  one  otVense,  and  is  uot  bad  for  duplicity.  Morgi  luttern  r. 
I'oiiunoiiiredlth,  476 


1<!.    Varidiirr. 

Under  a  law  punishinir  the  sale  of  liqiior  to  minors,  the  sale  of  the  litpior  to 
(he  minor  is  an  olfi'Msi"  against  the  j)ersori,  imil  the  name  and  idetilitv  of 
the  person  to  whom  the  licpior  was  sold  are  mali'rial,  and  where  the 
indictment  alleges  a  sale  to  minors  whose  names  are  unknown  to  the 
grand  jurors,  if  the  eviilenci;  on  the  trial  shows  that  the  names  of  the 
minors  wen;  known  to  the  grand  jurors,  the  variance  is  fatal,  and  the 
defendant  must  be  ac(p)itlcd.  Ibid, 

And  see  Noriis,  pp.  ;i!»0,  301,  404  and  409. 


UJIiiUU-i-i.  T.'-.'-^,^ 


INDRX. 


hotisf  on 
liifli  pro- 
ant,  sliiiU 
n  iiitoxi 
a  thoui^h 
Ibid. 


MAYHEM. 

Intent. 

In  criniin.'il  law,  when  a  special  intent,  beyond  the  natural  consequences  of 
tlic  tliiiiir  (lone,  is  essential  to  the  crime  clitiri^cd,  such  special  intent 
must  l)e  i)lea(leil,  proved  and  found,    tilate  n.  JJloedow,  ^i 


th  unlaw- 

ce  against 

that  tills 

isumption 

Sink  ri. 
408 

loxicatinfT 
1  from  (iir- 
e  satisfltMl 

efendant'a 
r  to  testify 
itli  money 
,  ttlthougb 
Ibid. 

becoming 
Ics  in  tlie 
of  becom- 
lis  general 
se  of  prov- 

Adaiim  «. 
893 


beer,  lager 

ing  liciuors 

witliin  the 

,  of  law  for 


I  minor,  an 

1(1   piiicc,  to 

unknown," 

rgtmtern  r. 

476 


he  li(|Uor  to 

I  identity  of 
wlicrc  the 
own  to  tiie 
tunes  of  the 
tal,  and  the 
Ibid. 


Where  det'end.int  had  destroy(!d  the  eye  of  a  (mtsou  by  throwing  a  stone 
at  liini,  tlie  information  for  mayheni  cliarged  tlie  mali('i(»us  intent  in 
the  words  of  the  siMtute,  Veniiel  thai  (lelendiint  was  "guilty  as 
charged  in  llie  informal  ion,  witii  tlie  nialieious  inienl  a.>  implied  tiy 
law."  //(■/(/,  thai  this  does  not  find  the  malicious  intent  us  a  fact  with 
BUtUcieut  certainly  lo  sustain  a  judgment  for  mayhem.  Ibid, 


MAURIAGE. 

S"'tmnien,fion  of  unlawful  marriages. 

1  The  Michigan  statute  (Comp.  L.,  sec.  4729)  makes  it  a  misdemeanor  for 
one  to  solemnize  a  marriage,  knowing  that  he  is  not  lawfully  author- 
ized to  do  so,  or  that  there  is  a  legal  imj)ediment  thereto.  lleUl,  to 
apply  to  marriages  not  authorized  by  law,  as  where  the  girl  is  under 
the  age  of  consent.     Honker  v.  People.  79 

2.  Where  a  justice  joined  in  marriage  a  girl  who  professed  to  be  of  the  age  of 
consent,  although  she  was  apparently  not,  it  was  fifkl  comitetent  to 
show  that  his  family  and  her  father's  were  neighbors  and  acMiuaiiit- 
ances,  and  that  at  her  marriage  ht;  did  not  inquire  for  lier  i)arenis,  who 
were  not  present.     These  facts  tended  to  .show  that  h(!  knew  the  girl's 


age. 


il/id. 


.'{.  But  it  seems  that  a  charge,  that  if  the  justice  "  had  good  reason  to  believe," 
or  "if,  in  the  exercise  of  a  reasonaiile  discretion,  he  liad  reason  to 
believe"  that  the  girl  was  under  sixteen  years  of  age,  he  is  guiltv,  is 
erroneous.  Jbid. 


4.  In  a  pro.secution  for  unlawfully  joining  a  minor  in  marriage,  without  the 

consent  of  her  parent  or  guardian,  the  defendant  has  no  right  to  show 
the  size,  appearance  and  general  develojiment,  for  the  purpuse  of  prov- 
ing her  age.     The  evidence  is  incompetent.     Stftte  v.  GriffitJi,  634 

5.  If  sucli  evidence  is  receivable  in  mitiuation  of  punisiiment,  its  rej(;ction 

will  not  he  lieid  error  where  the  trial  judge  has  already  inflicied  the 
lightest  penalty  provided  liy  tlic  statute.  Ibid. 

«.  In  a  prosecution  for  unlawfully  joining  a  minor  in  marriage,  it  is  no 
del'eiiM',  that  the  respondent  "acted  in  good  faith,  and  that  he  honestly 
believed  the  minor  to  l)e  of  full  age.  Ibid 


Whit  in  a  iiff/ro. 
A  marriatre  tx-lwecn  a  white  man  and  a  wvmian  who  is  less  than  one-fourth 
■  ■      '    ■  "   "his  lesser  ouantitv  mav   be.   is  leiial. 

o;)6 


ween  a  wnue  man  ami  ii  winiiiiii  wmi  in  leon  iimii  nin -i-imiku 

of   ne'To  blood,  hiiwev(!r  small   this  lesser  (luantity  may   be,   is  legal. 
.-,  -    .1/1  n'>A 


Afel'/icrson  r.  Vomiiioiiiri'ull/i, 

8.  A  woman  whose  father  was  while  and  whose  mother's  father  was  white, 
and  whose  greutgraudmiillier  was  of  brown  complexion,  is  not  a  n(!gro 
in  the  sense  of  the  statuie.  J^i^d- 


ii 


And  see  Hioamy. 


INDEX. 


NEW  TRIAL. 

The  evidence  in  this  case  being  purely  circumstantial  (consisting  princi- 
pally of  a  similarity  between  the  tracks  found  near  the  .scene  of  the 
arson  and  those  of  prisoner  sul)sc;(|uenlly  measured),  sliirht  in  its 
nature,  and  not  inconsistent  with  the  innocence  of  the  defendant,  a 
new  trial  should  have  been  granted,     tihaanuu  v.  iSlatr,  56 

Where  a  motion  for  a  new  trial  is  overruled  by  a  different  judire  from  the 
one  who  presided  at  the  trial,  the  weight  of  the  opinion  of  the  latter  in 
support  of  the  verdict  is  wanting.  Ibid. 

And  see  Note,  p.  58L 


t 


'4  h 

i4' 


I'    ' ' 


,  t 


PERJURY. 

1.  A  statute  punishing  any  one  who  endeavors  to  procure  a  person  to  swear 

falsely  "in  a  proceeding  before  any  court,  tribunal  or  otllcer  created 
by  law,  or  in  relation  to  which  an  oath  or  affirmation  is  authorized," 
does  not  extend  to  a  case  wherein  a  person,  intending  to  c(jinin<'ace  a 
suit  for  damages,  tried  to  induce  a  person  to  swear  falsely  iu  that  suit 
when  it  should  be  tried,  no  suit  having  as  yet  been  commenced.  State 
V.  Joaquin,  6.">0 

2.  It  seems  that  if  the  false  swearing,  which  it  was  sought  to  incite,  would  in 

itself  constitute  a  proceeding,  or  be  the  first  step  in  one,  ms  in  making  a 
false  compliiint  iiefore  a  magistrate,  the  act  of  endeavoring  to  procure 
the  false  oath  to  be  made  would  be  indictal)le.  In  this  case  the  indict- 
ment alleged  in  substance  thai  the  <lefendant  intended  to  commence  a 
suit  for  damages  against  one  Fox,  for  killing  his  sheep,  and  that  the 
defendant  endeavored  to  incite  one  George  to  swear  falsely  on  the  trial 
of  the  suit,  that  he  had  seen  Fox  dogging  the  defendant's  sheep.     Ibid. 

8.   Efficiency  of  evidence. 

<  'n  a  trial  for  perjury,  evidence  simply  that  the  defendant  had  at  one  tinio 
sworn  to  one  state  of  fads,  and  afterwards  changed  his  testimony,  and, 
admitting  that  he  had  sworn  falsely,  testified  iu  direct  contradicjion  of 
his  first  statement,  is  not  sufilcient  to  justify  his  conviction.  The 
prosecutor  must  prove  which  of  the  two  statements  is  false,  and  must 
corroborate  the  true  statement  of  the  prisoner  by  independent  evi- 
dence, i.  e.,  by  evidence  other  than  his  own  statements  and  declara- 
tions.    Schwartz  v.  Coinnwnwtalth.  410 

4  Under  the  New  York  statutes,  the  fire  marshal  of  New  York  city  has 
authority  to  investigate  and  examine  into  the  origin  of  fires,  and  to  take 
sworn  evidence  with  relation  thereto,  on  his  own  motion,  and  false 
swearing  on  such  an  investigation  is  perjury.  On  a  prosecution  for 
perjury  for  false  testimony  given  on  such  an  examination,  it  is  of  no 
consequence  that  no  sworn  complaint  had  been  made  to  him.  Harm 
9.  People,  416 

8.    Variance. 

It  was  objected,  in  the  appellate  court,  that  there  was  a  fatal  variance 
between  the  indictment  and  the  proof,  the  indictment  allciriiig  that  the 
respondent  had  sworn  tiiiit  at  the  time  of  the  fire  he  had  sixty  thousand 
cigars  in  the  l)uil<iing,  and  the  jjroof  sliowiiig  that  he  luul  sworn  that  he 
had  sixty-five  tiiousand  cigars  in  the  l)uil(ling.  This  ol)jeclion  was  not 
ma<le  at  the  trial.  JIM,  ithat  the  variance  was  not  material;  that  if  il 
was,  it  could  not  be  regarded,  the  objection  not  having  been  made  at 
the  trial.  Ibid. 

6  There  were  two  counts  in  the  indictment,  the  first  charging  perjury  in  the 
oral  testimony  given  before  the  marshal,  and  the  second  charging  \)vr- 
Jury  in  swearing  to  an  alliduvit  before  the  same  olllcer,  containing,  in 


INDEX. 


fi83 


»  prmci- 
le  of  the 
it  in  its 
mlant,  a 
5B 


suhstiiuce,  the  samo  matters  tcsiifliMl  to  orally.  The  jury  found  the 
defendant  not  siiilly  uiidcv  tlie  rtisl  (.'(mnt,  aiulVuilty  iitidi'f  llip  second. 
It  was  claimed  that  the  verdict  was  fatally  iucoiisislcrit.  Ilehl,  that 
inasmuch  as  it  ai)i)eared  tliat  the  fire  marshal  was  not  pies.'nt  when  all 
the  oral  testimony  was  given,  there  was  no  inconsistency  in  the  ver- 
dict. Ihid. 

PLEA. 

See  Note,  p.  485;  and  see  Hecoud. 


PLEADING. 
See  under,  PiiACTtCE. 

PRACTICE. 

1.  Qiiashinff  indiefment  or  information,  for  want  of  snjficienf  evidende,  bef&re  the 

e.rinniiii/ifj  moqistrnte  or  grand  jury. 

.\.n  indictment  can  only  he  biused  upon  lejj;al  evidence  adduced  before  the 
grand  jury.  The  grand  jury  has  no  ri,i,'lit  to  find  an  indictment,  upon 
unotiier  indictment  against  the  respondent  lor  the  same  offense  found 
by  antUher  grand  jury  at  a  previous  term,  which  had  l)een  quashed. 
And,  on  a  motion  to  (piash,  supported  by  evidence  that  the  indictment 
was  found  solely  on  the  former  indictment,  and  without  any  other  evi- 
dence, it  should  be  quashed.     Sparretibeiyer  v.  State,  470 

2.  Same. 

The  objection  to  the  validity  of  an  indictment,  on  the  ground  that  it  was 
found  by  the  gran<l  jury  without  any  legal  evidence,  must  be  taken  by 
a  motion  to  quash,  and  not  by  a  plea  in  abatement.  Ibid. 

;i.   Same. 

It  is  a  good  plea  in  abatement  to  an  indictment  that  the  prosecutor  was  not 
sworn  to  testify  before  the  grand  jury  as  to  the  matters  alleged  therein, 
but  having  been  summoned  befnre  the  grand  jury  to  testily  as  to  mat- 
ters concerning  which  the  grand  jury  possessed  inquisitorial  powers, 
gave  testimony  in  ihat  investigation,  upon  which  the  indictment  was 
found.     StiiU'  V.  JtMnnoii,  654 

•1,   Snnir. 

Wlierc  the  issue  tipon  sucii  a  i>lea  in  abatement  has  been  found  in  favor  of 
the  iirisoncr,  and  tlie  juiy  has  been  discharged  without  having  rendered 
a  v<  rdict  \i\nm  the  plea  «['  not  guilty,  the  prisoner  should  be  held  to 
answer  a  n(!W  indictment.  The  former  indictment  possessing  no  legal 
validity,  the  prisoner  was  never  in  legal  jeopardy.  Ibid. 

ft.   Sa)iii'. 

If  an  Indictment  is  found  on  the  testimony  of  witnesses  who  are  not  Bwom 
In  open  court,  the  indictment  will  be  quashed  upon  motion.  State  v. 
KilerenKe,  652 

6.  >-'am<\ 

,"~ince  the  amendment,  in  1870,  of  sec.  8,  art.  1,  of  the  constitution  of  Wis- 
consin, the  legislature  seems  to  have  full  power  to  prescribe  by  whom, 
in  what  manner,  and  under  what  circtunstances,  an  information  may 
be  (xhlbited  aguinst  any  person  for  any  criminal  offense.  State  v. 
Ltichtun,  117 

7.  Satin. 

A  formal  ailjiidini/io/i,  after  a  preliminary  examination  by  the  committing 
magistrate,  that  the  olTcnse  charucd  in  the  complaint  has  liceu  com- 
mitted, and  that  there  is  probable  cau.se  to  believe  the  accused  guilty 
thereof,  is  not  recpilred  (l{.  S.,  ch,  17(1,  sec.  li);  Tay,  Stats.,  V.m,  sec. 
lU),  as  a  basis  for  tiling  an  Infornintion,  but  it  is  enough  that,  upon 
such  examination  (or  a  waiver  lherei)f),  the  accused  has  been,  by  such 
magistrate,  held  to  bail,  or  committed,  to  answer  for  an  oUensc.     llnd. 


.  \: 


II 


684 


INDEX. 


Ui 


■ 

Hi" 

■ 

^K ' 

Hi 

^■f'^ 

r 

1  1 

i 

f9^ 


i 


8.  Same.  | 

Under  ch.  190,  of  1875,  where  the  accused  has  heen  thus  held  to  bail  or 
coiTimitted,  the  infonnalion  liled  by  the  district  attorney  need  not  be 
for  the  olTense  cliarged  in  the  coinpiaint  before  tlie  iiiajri.strate,  but  may 
be  for  any  offense  wlueh  the  testimony  talien  on  the  examination  >hoW8 
the  accused  to  have  eonimitted;  but  tlie  district  attorney  may  exhibit 
an  information,  as  for  a  felony,  if,  in  his  opinion,  the  testimony  so 
talien  proves  the  accused  guilty  thereof,  though  the  magistrate  may 
find  him  guilty  of  a  misdemeanor  only.  J/dd. 

9.  •^ame. 

Tiie  fact  that  there  has  been  a  prelinnnary  examination  need  not  be  stated 
in  the  information,  or  shown  allirmatively  by  tlie  prosecution  (I'ttcrxon 
V.  The  Slate,  unreported);  and  when  the  defendant  relies  upon  the 
absence  of  such  an  examination,  it  mmx  \\\aI  the  better  jjractice  is  to 
plead  it  in  altatement  before;  pieadin.ir  to  tlie  merits;  and.  if  issue  is 
joined  on  such  a  plea,  the  burden  of  proof  is  upon  the  accused.       Ibid. 


10.  Indictment. 


And  see  Note,  p.  lilS. 


'i'he  indictment  is  sutlicient,  although  it  does  not  speciticaliy  allege  that 
tlie  crime  charged  was  committed  in  the  state  of  Kansas.     Nats  « 
Bi//u'e,  449 

11.  It  is  a  general  rule  in  criminal  pleading,  that  if  an  offense  may  be  com- 

nutted  in  either  of  various  modes,  the  |)arty  cliarged  is  entilied  to 
have  that  mode  stated  in  the  indictment  which  is  [>r<)ved  at  the  trial; 
and  when  one  mode  is  stated,  ami  proof  of  the  commission  of  the 
olfense  by  a  different  mode  is  olfirtd,  such  evidence  is  incompetent  by 
reason  of  variance.     Cwnmoiiwenlth  r.  liifhavdxon,  ttl2 

12.  Awriitfid  (if  oiriicrnki/i. 

An  indictment  for  buiirlary,  which  alleges  a  felonious  breaking  and  enter- 
inii  ol  "the  dwelling-house  of  tlie  late  .Ino.  Tate,  now,  etc. ,  *  »  • 
belonging  to  the  estate  of  the  late  .Jno.  Tate,"  and  in  the  second  count, 
"the  dxvrllinu-hoiise  of  the  estate  of  tlie  late  .Inn.  Tate,"  is  faially 
defective  in  not  showing  whose  house  was  broken  into.  .loliii  Tate 
being  dead,  the  liouse  must  of  neei'ssity  belong  to  some  one  else,  and 
this,  lor  all  that  appears  in  the  iudictiuent,  may  be  the  respondent. 
Jiiiill  r.  S/utf,  40;J 

1«.    Cotiiliirt  of  trial. 

The  trial  judge  must  occupy  the  bench 
imliiiiestlie  argument  of  counsel, 
two  days  during  the  argument,  the 
but  in  iiuotlier  part  of  the  huiidinir, 
nieinbers  of  the  bar  iiresided  in  his 
ulthoiigh  this  was  done  'ly  consent  i 
by  liis  own  eon^eiil.  The  aeeusei 
judge  tliu'ing  his  trial.     Mtraltlh  r. 

14,  Siiiiic. 
It  is  error,  for  which  n  conviction  will 

shackled  in  court  during  his  trial. 

15.  Same, 
Where,  in  a  criminal  prosecution,  the 

he  waives  his  riulii  to  have  the  jury 


throughout  the  entire  trial,  which 
Where  it  is  made  to  iippear  that,  for 
judge  was  not  in  the  eourl  room, 
eiiiiaged  in  other  bu>iness,  and  that 
place,  the  verdict  will  he  set  aside, 
f  the  respondent's  eoMiisel,  or  even 
1  cannot  waive  the  presence  of  tlM! 
J'tojik,  448 


be  reversed,  to  keep  the  prisoner 
Stulf  e.  h'riii;/,  5113 


defendant  ilemnrs  to  the  evidence, 
|ia.ssu|ion  the  ease;  and  it  is  proper 
for  the  court  to  discharge  the  jury  an<l  uive  judgnn  iil  upon  the  whole 
case,  upon  tlie  facts  as  well  as  upon  the  law,     JIu'i/iiukou  v.  Voiiimou- 

16.     77/,'  ,hnr;ie. 

Wli<  re  die  charge  consists  of  several  distinct  jiropositions,  some  of  which 
are  Coin  ct,  a  general  t'xception  to  the  whole  charge,  and  every  part  of 


«i^l!S 


I    \ 


=r: 


INDPX. 


GS", 


iiid  cuter- 

*     »    • 


iiti2 


It,  will  not  be  considered  by  tlie  appellate  court.  The  party  excepting 
should,  at  the  time,  point  out  definitely  the  part  of  the  charge  excepted 
to,  and  state  the  grounds  of  his  exc(3ption.    Adams  d.  State,  393 

17.  If  the  court,  in  a  distinct  proposition,  states  to  the  jury  on  what  facts 

they  may  find  the  defendant  guilty,  and  in  that  proposition  entirely 
omits  to  direct  tlie  attention  of  the  jury  to  the  necessity  of  finding  a 
felonious  intent,  it  is  error,  although  the  court  has  in  another  part  of 
the  charge  stated  the  law  of  larceny  fully  and  correctly.  Territory  v. 
Paul,  332 

18.  On  an  indictment  containing  one  count  for  robbery,  and  one  charging 

assault  with  intent  to  rob,  the  respondent  may  be  convicted  of  assault 
and  battery,  or  of  simple  assault  merely,  and  it  is  error  for  the  court  to 
refuse  so  to  instruct  the  jury,  when  the  instruction  is  asked  for  by 
respondent's  counsel.    Howard  v.  State,  4^ 

19.  fJrder  of  proof. 

The  trial  court  has  a  discretion  to  allow  the  prosecution  to  elicit,  on  cross- 
examination  of  the  respondent's  witnesses,  material  evidence  in  support 
of  the  case  in  chief,  even  though  such  witnesses  did  not  testify  as  to 
such  matters  in  tlieir  direct  examination,  and  tlic  judgment  will  not  be 
reversed  because  that  lias  been  done,  unless  it  appears  that  there  was 
sucli  an  abuse  of  discretion  as  to  deprive  the  respondent  of  a  fair  trial. 
Adams  v.  State,  39!5 

20.  Where,  by  an  oversight,  there  was  no  formal  allowance  of  a  writ  of  error, 

but  the  court  can  see  that  it  would  and  should  have  been  allowed,  on  a 
motion  to  quash  the  writ  of  error  for  want  of  an  order  allowii;g  it,  the 
court  will  make  the  ord(!r  of  allowance  nunc  pro  tuiic.  Hutchinson  t. 
Commouircalth,  362 

21.  {ppeal  only  lits  after  final  judgment. 

An  appeal  cannot  be  taken  from  an  interlocutory  judgment  sustaining  a 
denuirrer  to  a  pk'a  of  former  ac(iuittal.  Appeal  only  lies  after  a  trial 
upon  the  merits  and  tinal  judgment.     State  v.  Uorneman,  427 

2'i  Whi're  a  jury  is  sworn  in  a  criminal  case  on  the  last  day  of  term,  the 
fonrt  liiis  "power  to  continue  the  trial  from  day  to  day  after  the  term 
until  it  is  terminated.     Carroll  v.  Commonwealth,  290 

2:<.    Ittpfdl  III'  the  law  jiruding  appeal, 

\\  liere  the  law  under  which  the  respondent  is  indicted  is  repealed,  pending 
his  appeal  and  before  any  final  judgment  has  been  pronounced,  the 
repeal  of  tlie  law  abates  tlie  jiroeeedings,  and  no  judgment  can  be  pro- 
nounced.    Smith  V.  Slate,  48 

24.    DiKcharfU'  on  arcount  of  dihiy  of  trial. 

I  nder  a  statute  providing  that  a  person  under  indictment  who  has  given 
bail  for  bis  appearance,  shall  be  discharged  if  not  brought  to  trial 
before  the  end  of  the  third  term  of  the  court  in  which  the  indictment 
is  pen<ling,  held,  after  such  indictment  is  found,  unless  the  trial  is  post- 
poned on  his  application,  or  because  there  is  no  time  to  try  it  at  such 
third  term,  the  respondent  is  not  entitled  to  be  discliargcd,  where  the 
trial  is  postponed  from  term  to  term  without  any  ohicciion  on  his  part, 
although  more  than  three  terms  pass  without  a  trial.  In  order  to  get 
the  benefit  of  the  statute,  the  respondent  must  apply  to  the  court  for 
a  trial  or  his  discharge,  and  if  the  prosecution  are  ready  to  try  the  ciuse 
at  the  term  in  which  he  ajiplies  for  his  discharge,  but  are  prevented  from 
trying  it  because  there  is  not  time  to  try  it  at  that  term  of  court,  the 
respondent  is  not  entitled  to  be  dischaigecl.     Krwin  v.  Sinte,  251 

And  see  Continuance,  Fokmf.u  .lEoi'Aitnv,  Jvnv,  New  Trial,  Puohe- 
cuTiNO  Counsel,  Reasonaulk  Dot  itr,  Recoud,  Refutation,  Sen- 
tence. Venue, 


i. 


i 


686 


INDEX. 


PROSECUTING  COUNSEL. 


The  prosecuting  counsel  has  no  right  to  argue  to  the  jury  that  in  a  doubt- 
ful case  it  is  safer  to  convict  thuu  to  acquit,  on  the  ground  tliiil  an  acquit- 
tal is  final,  but  if  the  defendant  is  wrongfidly  convicted,  tlie  conviciun 
will  be  set  aside  in  a  higher  court,  and  the  trial  judge  should  not  per- 
mit such  an  argument.     State  v.  Kring,  '6V6 

And  see  Note,  p.  317 


h 


Ta.'  district  attorney  asked,  and  the  court  gave,  a  lengthy  printed  instruc- 
.'ou  to  the  jiuy,  at  tlic  bottom  of  wliicili  the  district  attorney  Imd 
\7ritten  in  pencil  these  words:  "This  is  among  a  people  of  loose 
ways;  try  to  elevate  your  race."  JLId,  tliat  if  llie  testimony  was  in 
the  leiist  conHicting,  or  the  guilt  of  the  piisoucr  in  any  way  left  in 
dou'  "  court  should  giant  a  new  trial.  But  where  it  is  impossible 
for  the  i'lry  \r;  liave  been  misled  by  it,  and  the  guilt  of  the  accused 
estabii^iued  Lcyond  all  doubt,  it  is  not  sulhcient  for  a  reversal.  Taylor 
V.  State,  18 

The  rule  requiring  the  prosecution  to  call  every  attainable  witness,  where 
testimony  is  needed  to  disclose  any  part  of  the  transaction,  is  to  pre- 
vent the  suppression  of  evidence,  and  does  not  make  it  always  neces- 
Bary  tocall  all  witnesses,  particularly  where  their  testimony  would  be 
only  cumulative,  or  where  it  appears  that  they  abetted  the  commission 
of  tlu!  oHense,  and  the  oilensc  is  not  a  crime  of  violence.  Jioukcr  r. 
People,  79 


n\  ■^ 


X ' 


RAPE. 

Force  is  an  essential  ingredient  in  the  crime  of  rape,  and  a  charge  that  if 
the  defendant  intended  "to  gratify  his  passion  upon  tlie  perMHi  of  tlje 
female,  eitlier  by  (oTca  or  by  ttitrprine,  and  against  her  consent,  then  ho 
is  guilty  a»  charged,"  is  erroneous.     McA'air  v  Stats,  (JSH 

And  see  Note,  p.  585. 


2.  ( )n  a  trial  for  rape,  the  admission  in  evidence  of  the  statement  of  the  sister 
of  the  prosecutrix,  that  the  latter  made  complaint  to  h(;r  the  next  morn- 
ing that  tlie  prisoner  on  trial,  and  another  person  named,  forced  lier  in 
her  chamber  the  evening  before,  is  held  not  error.  Brown  v.  Pttojile.  r>86 

8.  Where,  on  a  trial  for  rape,  the  act  of  intercourse  is  admitted,  and  tlie  vital 
question  is,  whether  it  was  by  force  and  against  the  will  of  the  prose- 
culri.x,  the  jury  must  be  Wiitislied  beyond  a  reasonable  doubt  that  siio 
did  not  yield  her  consent  during  any  part  of  the  act;  and,  consideiiiig 
the  place,  lime,  occasion  and  surroniidiiig  circumstances  disclo.sed  by 
this  case,  it  was  important  the  jury  should  scrutinize  the  facts  bearing 
on  this  point  very  closely.  Jbitl. 

4.  A  charge  to  the  jury  in  a  rape  case,  that  if  they  should  find  respondent 
used  force,  and  complaiiiiint  resisted  so  far  as  she  was  able  to  under 
the  circumstances,  they  should  find  him  guilty,  even  though  they  found 
she  at  last  yielded,  is  held  erronecuis  and  misleiiding;  the  term  "cir- 
cumstances, '  as  liere  tised,  may  iiave  been  luiderstood  ns  including 
weakness  of  tlie  will;  and  the  term  "yielded  "  as  meaning  an  a>sent  to 
the  consummation  or  completion  of  the  act;  and,  if  there  was  a  yield- 
ing  in  that  sense,  there  was  no  case  to  support  a  verdict  of  guilty.  Ibid, 


loose 


INDEX. 


687 


5.  The  evidence  on  the  part  of  the  people  being  that  the  prosecutrix  never 

yielded,  and  that  on  the  part  of  llie  accused  that  she  made  no  resist- 
ance, but  assented  from  the  begiuniug,  tliere  was  no  basis  for  a  iluirj^e 
on  t lie  hypothesis  of  her  having  first  made  resistance,  but  afterwards 
yielded.  Ibid. 

6.  The  law  conclusively  presunies  that  a  female  child  under  ten  years  of  age 

cannot  and  does  not  consent  to  an  act  of  carnal  intercourse,  and  it  is 
not  error  to  so  instruct  tlie  jury.     Oosha  v.  Skite,  589 

7.  A  person  charged  with  rape  cannot  be  convicted  on  the  uncorroborated 

evidence  of  the  prosecutrix,  who  admits  that  she  is  uncliaste.  and  who 
charges  thi'  defendant  with  having  taken  her  from  lier  room  in  the 
niglU,  where  another  person  was  sleeping,  and  with  having  taiien  her 
two  miles  on  horseback,  where  lie  committed  tlie  crime,  and  with  hav- 
ing then  carried  her  back  to  her  room.     People  v.  Ardaf/a,  5'.)0 


i'i 


REASONABLE  DOUBT. 

1.  It  is  error  to  instruct  a  jury  that  "if  the  evidence  is  such  that  a  man  of 

prudence  would  act  uf-on  it  in  his  own  allairs  of  the  greatest  import- 
ance, then  tliere  canm  ;  remain  a  reasonal)le  doubt  within  the  meaning 
of  the  law."     People  v.  Ah  Ling,  ^W 

2.  A  charge  that  "  in  order  to  convict,  the  evidence  should  be  such  as  to  con- 

vince you,  as  reasonable  men,  that  the  charge  is  true.  If,  as  reasonable 
men,  <i%iidi d  by  that  prude im,  (ind  reason  irhirh  f/oi:crn  you  in  the  ordinary 
eoiidu'rt  of  your  affairs,  you  liave  a  doubt  of  the  defendant's  guilt,  you 
sliould  acquit,"  is  erroneous.  The  jury  miglit  well  have  understoud 
from  it  that  if  in  tlieir  ordinary  alfairs  they  would,  upon  the  evidence 
before  them,  adopt  and  act  upon  tlie  hypothesis  that  the  accused  was 
guilty  of  the  crime  cliarged,  they  should  convict  him.  Anders'^u  n. 
State,  l'J8 

3.  An  instruction  from  which  the  jury  may  infer  that  a  doubt  is  not  a  reason- 

able doubt  unless  it  is  shared  by  all  tlie  members  of  the  jury,  and  that 
unless  such  a  doubt  exists  the  defendant  should  be  convicted,  is  errone- 
ous. Such  a  doubt  must  exist  before  there  can  be  an  acquittal  {State  e. 
Jiodahach,  IS)  Iowa,  151),  but  there  ought  not  to  be  a  conviction  so  lone 
as  one  or  more  of  the  jurors  entertain  a  reasonable  doubt  of  the  defend- 
ant's guilt.     Stale  v.  Stewart,  <J08 


RECORD, 

In  a  criminal  case  there  is  no  issue  formed,  and  can  he  no  valid  trial  until 
the  respondent  has  pleaded.  Where  a  conviction  has  been  hud,  with- 
out a  plea  liaving  been  entered,  the  conviction  must  be  set  aside,  and 
the  cause  rcnianiied,  with  direclions  to  arraign  the  i)risoner  and  pro- 
ceed to  a  new  trial,  although  tlie  record  shows  that  prior  to  the  former 
trial,  the  respondent  waived  arraignment.     Hos/ciua  v.  People,  484 


REPUTATION. 

A  person  on  trial  for  crime  has,  in  all  cases,  a  right  to  give  in  his  defense, 
evidence  of  his  good  character  as  to  the  particular  traits  involved  m  the 
matter  on  trial,  and  there  is  no  case  so  clear  in  which  it  is  not  error  to 
reject  sucli  evidence.    Kec  v.  State,  263 


i    < 


688 


INDEX. 


2.  It  is  error  for  a  court  to  modify  a  request  to  charge  that  "  evidence  of  eood 
cbaracler  is  to  be  taken  into  consideration  in  determining  the  guilt  or 
innocence  of  the  accused"  by  adding,  "but  where  guilt  is  positively 
proved,  then  good  character  will  not  benetit  the  defendant."  Proof  of 
good  character  is  evidence  to  be  weighed  by  the  jury,  on  the  question 
of  tlie  (lelVndant's  guilt,  irrespective  of  the  apparent  conclusiveness  or 
inconclusiveness  of  the  other  evidence.     Kiatler  v.  State,  18 

8.  The  failure  of  a  defendant  to  call  witnesses  to  prove  a  previous  good  char- 
acter, does  not  justify  any  presumption  against  him,  and  it  is  error  for 
the  court  to  instruct  the  jury  that  they  have  a  right  to  consider  it  as  a 
circumstance  against  him.     SUiU  v.  Di>cksUiOer,  469 

4.  The  prosecution  cannot  attack  the  character  cf  the  prisoner  unless  he  first 
puts  that  in  issue  by  offering  evidence  of  his  good  character.  8tat«  t. 
Lapage,  606 


5. 


The  prosecution  cannot  show  the  defendant's  bad  character  by  showing 
particular  acts.  Ibid. 


6.  'ITie  good  reputation  of  the  accused  may  be  proved  by  witnesses  who  have 

never  heard  his  character  discussed.  Negative  evidence  is  competent, 
and  the  fact  that  a  person's  character  is  not  talked  about  at  all  is  often 
excellent  evidence  that  he  gives  no  occasion  for  cen,sure,  and  that  hi.s 
character  is  good.     State  v.  Lee,  88Si 

7.  The  accused  has  a  right  to  prove  his  real  disposition  and  character  (as  to 

the  traits  involved  in  the  case  on  trial)  by  the  testimony  of  those  who 
know  what  it  is  from  their  own  personal  observation.  Ibid. 

&  "WTiere  it  appears  afflrmatively  by  the  testimony  of  an  impeaching  witness, 
tliat  he  has  some  kuowledue  of  the  reputation  of  a  witness,  whose 
reputation  for  veracity  lie  is  called  to  discredit,  it  is  error  for  the  court 
to  reject  his  teslinidiiy  as  to  that  reputation  on  tlu;  groimd  that  hi.'*  knowl- 
edge of  that  rei>utiiiion  is  not  sulliclent.  It  is  for  the  jury  to  judge  of 
the  weiglit  of  testimony.     Territory  v.  Paul,  H33 

9.  .Vn  impeaciiiiiii;  wituesss  may  be  cross-examined  by  the  adverse  party  as  to 
the  extent  and  sources  of  liis  knowledge,  before  testifying  to  the  repu- 
tation of  the  witness  he  is  called  to  impeach.  Ibid, 

See  LiQiJoii  Selling. 


r!  •":*■■: 


\¥ 


m.ri. 


m 


SEDUCTION. 

1.  Under  the  Ohio  statute  against  seduction  of  "any  female  of  good  repute 

for  chastity,  luuier  thi'  aire  of  eiirhteen  years,"  specific  acts  of  lewdness 
and  misconduct  nn  tiie  part  of  the  prosecutrix  witii  others  than  the 
respondent  prior  to  the  alle.iicd  seduction,  are  not  admissible  in  evidence. 
Only  proof  of  reputation  is  admissible,     liinrers  v.  I'^tat^,  693 

2.  The  Ohio  stiitute  npiinsl    seiluclioii  extends  to  all  females  under  the  age 

ol  ciiihieeii  years  whose  reputation  tor  chastity  is  good,  whether  that 
reputiition  is  d(!servi'd  or  not.  Ibid. 

8.  .\.  communication  miido  by  the  prosecutrix  to  lier  iittorney,  in  a  consulta- 
tion witli  leuiini  to  u  haslarlv  vroceediii:'  which  she  had  instituted,  is 
privile;;eii  and  cannot  lie  given  in  eviilence.  Ibid. 

i.  For  a  case  in  which  the  court  deternnned,  as  ma'( -r  of  law,  that  the  evi- 
dence was  insulllcient  to  sustain  a  conviction,  sec  State  v.  Uawes,    694 


INDEX. 


689 


5.  In  an  action  for  the  seduction  of  a  girl  thirteen  years  old,  the  omission  of 

direct  proof  that  she  was  not  married,  the  question  not  havinjr  been 
raised  on  the  trial,  was  lield  unimportant.  At  that  age  slie  could  not 
lawfully  be  married.     Lewis  v.  People,  75 

6.  In  an  action  for  sodnction.  evidence  of  the  conduct  and  appearance  of  the 

parties  on  \\w  day  following  the  alleged  offense  is  relevant  to  help 
ascertain  whether  it  had  been  accomplished  by  seductive  means.    Ibid. 

7.  Where  the  prosecutrix,  in  a  seduction  case,  has  testified  that  defendant  has 

told  her  that  certain  other  liirls  allowed  such  liliertics,  it  was  proper  to 
allow  counsel  for  tlie  prosecution  to  aslv  her  their  names,  as  evidence 
bearing  on  the  means  used  in  effecting  the  seduction.  ■  Ibid. 

8.  In  the  examination  |>reliniinary  to  a  prosecution  for  seduction,  the  prose- 

cutrix testified  that  defendant  had  offered  her  no  inducement  and  made 
no  promise,  but,  on  the  trial,  she  testified  that  he  had  protested  his 
lov(!  and  talked  to  lier  of  marriage.  Held,  that  it  was  reasonable  to 
caution  the  jury,  which  had  an  opportunity  to  observe  her,  to  consider 
her  embarrassment  on  the  examination,  and  her  youth  and  degree  of 
intelligeiiee,  and  dclermine  wiiether  she  would  have  volunteered  to  tell 
all  that  (h^fendant  had  said  to  heraiiout  love  and  marriage,  and  whether 
she  would  consider  it  as  a  promise  unless  her  attention  was  called  to  it, 
and  to  charge  tluni  tliat  if  they  were  satisfied  that  shi;  had  told  the 
trnth  on  the  trial,  and  tliat  defendant  had  induced  her  to  consent,  they 
shiiuld  lind  liim  guilty.  Ibid. 


BELF-DEFENSE. 
See  Homicide. 


SENTENCE. 

1.  What  sentence  may  be  lawfully  i)as>.ed  in  luiy  case  can  only  be  determined 

by  the  upiieljate  Court,  alter  judgment  has  been  pronounced  in  the  court 
below,  ll  caniiol  he  determined  on  exceptions  before  judgment.  State 
r.  Liir/iiii/i,  117 

2.  No  court,  without  a  special  statutory  authority,  possesses  the  poAvor  to 

sus|)cTid  sentence  inileliniiely.  It  is  the  duty  of  the  court  to  pronounce 
judgment  in  the  case  of  every  person  convicted.  People  v.  Morrinettc,  475 

3.  The  extreme,  penalty  of  thi'  law  is  only  to  be  inflicted  in  the  most  aggra- 

vated cases.  In  this  case  the  trial  judge  having  imposed  the  extreme 
penalty  of  the  law,  in  a  case  which  was  manifestly  not  of  the  most 
aggr.avated  character,  tiie  term  of  imprisonment  was  reduced  by  the 
Supreme  t'ourt  from  ten  to  live  years.     Slate  v.  Thompwii,  486 

4.  Theconstitutioiuil  ju-ovisiou  that  "cruel  and  unusual  punishment  shall  not 

be  inllicted  "  must  be  given  I'lTect  by  the  courts,  and  where  the  trial 
judge  imposes  a  .sentence  of  excessive  severity,  judgnumt  will  be 
rever.scd  and  the  cause  remanded  for  a  proper  sentence  to  be  imposed. 
Stale  v.  Drin  r,  487 

5.  On  a  conviction  for  assault  and  battery,  a  sentence  of  imiirisonment  in  the 

(;ounty  jail  for  live  years,  and  at  the  expiration  thereof  to  give  security 
with  sureties  in  the  sum  of  $.500  to  keep  the  peace  for  tive  years,  is 
excessive  and  erroneous.  Ibid. 


Vol.  II.— 44 


690 


INDEi: 


6.  Whcro  the  jury  must  fix  the  piinislimcnt  of  the  respondent  if  they  find 
liim  i;iiilty,  the  re^pomleul  has  a  right  to  prove  on  flie  trial,  in  niitica- 
tion  of  punishment,  that  he  lias  already  been  imprisoned  on  the  same 
charge,  for  a  long  time,  and  the  jury  should  consider  such  evidence  in 
mitigation  of  punishment.     Kinlkr  c.  State,  18 


7.  An  indictment  contained  four  counts,  and  a  general  verdict  of  guilty  was 

returned.  Tlie  court  sentenced  llii'  (lefeiidant  on  the  lirst  two  counts, 
and  made  no  order  continuing  the  case  for  sentence  on  the  other  coimts. 
Afterwards,  and  at  a  suhsecpienl  term,  the  judgment  not  Jiiiviiig  been 
reversed,  and  the  defendant,  being  iinjjrisoned  under  it.  was  l)rought 
from  prison  on  a  /ni/xnx  rorfiux  and  a  fresh  sentence  imposed  on  him 
for  Die  ofTensc  charged  in  the  thinl  eoiuit :  llilil.  that  tlie  last  sentence 
was  erroneous  and  void.  Tiiere  can  be  l)ut  one  judgineiii  upon  an 
indictment,  and  conseciuently  a  judgment  and  sentence  upon  one  count 
definitely  an<l  conclusively  disposes  of  tiie  whole  iinlictnient,  and  oper- 
ates as  an  acquittal  upon,  or  discontinuance  of  the  other  counts.  Com- 
momccnlth  v.  Foster,  499 

8.  Where  a  cumulative  .sentence!  of  imprisonment  is  passed  on  a  conviction 

on  several  counts,  the  judgment  should  not  fix  the  diiy  .'iiiil  hour  on 
which  each  successive  term  of  imprisonment  shouiil  (((innience,  imt 
should  siini)ly  direct  that  each  successive  term  should  begin  on  the 
expiration  of  the  one  preceding.     Johnxoii  r.  J'dt/ili .  396 

9.  An  appellate  court,  on  reversing  a  jwdgiiK'iit  because  tin;  s(;iiteiice  imposed 

was  not  aiithorized  bylaw,  h;is  no  power  t<>  impose  the  proper  sen- 
tence, or  to  remand  the  case  to  the  court  of  original  jurisdiction  for 
that  purpose.     McDonald  v.  State,  493 


SUNDAY  LAW. 

1.  The  necessity  which  excuses  and  jusiities  <'omninn  labor  on  Simday  need 

not  be  a  physical  or  absolute  iieees>ity.  If  the  labor  is  necessary,  tmder 
the  circiimstaiK'es  of  any  ])artieiilar  case,  to  be  performed  on  Sunday, 
in  order  to  accomplish  .any  lawful  jiurpose,  it  is  not  prohibited  by  the 
statute.      Wilkinnon  v.  Slatt'.  ,'596 

2.  A  fruit-grower  may  lawfully  pick  his  fruit  on  Sunday,  and  liiiul  it  on  the 

way  to  a  Monday's  market,  if  witiioul  such  labor  on  Sunday  his  crop 
would  be  lost  to  him  by  spoiling  before  l:e  could  get  il  to  a  market,   /bid. 

3.  The  word  sho])  is  not  e(|uivalent  to  (he  word  store,  and  indictnimit  charg- 

ing the  defendant  with  keeping  'open  slioj)"  on  Sunday,  does  not 
charge  any  offense  under  a  statute  prohibiting  keeping  "open  store" 
on  Sunday,     tsparrenbtrycr  r.  State,  470 


VAKl.VNCE. 
See  FoKGERT. 


VALUE. 
See  Larcbnt. 


lent  if  they  And 

trial,  in  niitipa- 

(.(1  on  thf  sttin<! 

ucli  evidence  in 

18 

iet  of  suilly  was 
lirst  two  counts, 
tlie  otlur  covnits. 
not  hiiviu.tj  lieen 
it.  wiis  t)r()Uirlit 
imiioscd  on  liim 
tlio  lust  sfutenee 
ilgmciii   iii>on  an 
e  (ijton  oni'  count 
cliucnt,  and  oper- 
icr  counts.     Com- 
490 


(1  on  a  conviction 
(liiy  iind  liour  on 
(I  ("(nunicncc,  but 
uld  Itci-'in  on  tlie 
396 


INDEX. 


VENUE. 


691 


1.  It  is  not  f>rror  to  refuse  a  chiirirc  of  venue  on  the  pround  of  prejudice  in 

the  comnuiiiity,  wliere  llie  i»iiii(i  fticie  case  made  by  the  allidavils  filed 
by  tlic  n'spondeiu  is  fully  imswered  and  clearly  overcome  by  the  alliila- 
vils  tiled  in  reply  by  the  state.     Stdte  c.  Bo/tan,  27S 

2.  Tlic  venue  must  be  proven  as  laid.     Where  tlie  only  evidence  was  that  ilic 

act  occurred  within  lifty  yards  of  a  house  in  Sumter  county,  the  evi 
deuce  was  lieid  insiillicient,  as  the  house  might  have  been  within 
twenty  yards  of  tlie  county  line.     CioKha  r.  State,  n-li 

3.  In  this  case  t\u'  court  irivea  elTtH't  to  a  technical  objection  more  readily. 

because  of  the  unilue  sc^verity  of  the  sentence  imposed.  JOi'il. 

A.  Under  tlie  Nebraska  statute,  ])rovi(!infj  for  a  change  of  venue,  but  one 
cliaime  of  venue  can  be  had  for  the  same  cause,  id  the  same  proceedinir. 
Ej>  partt  (Jaritt,  Oiy 


VERDICT. 

See  M.WHKM  ;  Fok.mkk  .Ieopakdt. 


•  sentence  imposed 

sc  the  proper  sen- 

lal  jurisdiction  for 

493 


W.MVER. 

Sec  .IritY. 


lor  on  Sunday  need 

■  is  necessary,  under 

formed  on  Sunday, 

,t  prohibited  by  the 

596 

und  liaid  it  on  the 
,11  Sunday  his  crop 
il  to  a  marliet.   Ibid. 


W\UR.\NT. 

An  officer,  arnu'd  with  process  for  the  arrest  of  a  person  in  a  civil  suit,  can- 
not take  till'  lit  fcnduiit  from  the  hands  of  anotlier  otlicer  who  holds 
him  on  a  warrant  issunl  in  a  criminal  ea.se;  nor  can  he  hold  such  per- 
son as  against  oiii.'  aimed  with  a  eriminiil  warrant,  and  the  same  rule 
ajiplies  to  a  pnK'ccding  under  a  requisition  from  the  governor  f)f  another 
state  asking  for  his  return  as  a  fugitive  from  justice.  Ex  parte 
liostiiblatt,  '  SJ16 

See  EscAPU;  Homilidb. 


Ill  indictment  charg- 

n  Sunday,  does  not 

;epiug  "biieu  store'' 

470 


